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HOUSE DOC. Xo. YI. / ^ 






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COMMUNICATION 



FROM THE 



GOVERNOR OF VIRGINIA 



TRANSMITTING 



REPORT OF THE COMMISSIONERS 



TO ARBITRATE 



THE BOUNDARY LIJ^E BETWEEN VIRGINIA AND MARYLAND, 



COMMONWEALTH OF VIRGINIA, 
Governor's Office, 

Richmond, \^ih January^ 1877. 
To the Senate and 

House of Delegates : 
I have the honor to transmit herewith the award of the Board of Arbitra- 
tors, appointed to ascertain the line of boundary between Virginia and Mary- 
land; also the several opinions of the arbitrators thereon, together with a map 
exhibiting the adverse claims of the two states, and a communication from the 
secretary of the Board. 

■ , JAMES L. KEMPER. 



House Doc. Xo. 6. 



FIB7 



Letter from the Secretary of ilie Board. 

WASHIXGTO:., D. C, January 17, 1877. 
To His Excellency James L. Kemper, 

Governor of Virginia: 
Dear Sir : 

I have the honor to inform you tliat I forward per Adams Ex- 
press the " Award and Opinion^^ of the Board of Arbitrators on the disputed 
boundary line between the states of Virginia and Marj'land. 

I also enclose a communication from the Boan; in regard to the compensa- 
tion of the secretary. • 

• Very respectfully, ) ours, etc., 

A. W. GRAHAM, 

Secretary of the Board. 



The arbitrators to determine the boundary between Maryland and Vir- 
ginia, in May, 1875, requested Aug. W. Graham, of North Carolina, to act as 
secretary of the board. He has performed his responsible and laborious .duties 
with unexceptionable fidelity and with mai-ked tibility. They have no author- 
ity to fix his compensation, but have considered it right to express an oi:)inion 
about it. After conference, they have directed me to say that they think the 
sum of three thousand dollars moderate and rea>onable. 

J. S. BLACK, Chairman. 
Wasdington, January 17, 1877. 



House Doc. No. 6. 



OPINION OF ARBITRATORS. 



The undersigned are requested by the states of Virginia and Maryland to 
ascertain and determine the true line of boundary between them. Having con- 
sented to do this, in the capacity of arbitrators, we are about to make our award. 

To examine the voluminous evidence, historical, documentary, and oral ; to 
hear with due attention the able and elaborate arguments of counsel on both 
sides, and to confer fully on the merits and demerits of this ancient contro- 
versy, required all the time we bestowed on it. 

The death of Governor Graham, in the midst of our labors, was a great loss 
to the whole country ; but to us it was a special misfortune, for it deprived us 
suddenly of the industry, the talent, the wise judgment, and the scrupulous 
integrity upon which we had relied so much. Though these high qualities were 
fully supplied by his distinguished successor, the vacancy occurring when it 
did, set back our proceedings nearly to the place of beginning, and caused a 
delay of almost a year. 

Our first intention was to make a naked award, without any statement of the 
grounds upon which it rested ; but after more reflection it seemed that the 
weight of the cause, the dignity of the parties, and the wide difference of 
opinion, grown inveterate by centuries of hostile discussion, made some expla- 
nation of our judgment desirable, if not necessary. 

The charter of Charles I to Cecilius, Baron of Baltimore, dated June 20th, 
1632, gave to the grantee dominion over the territories described in it, and 
made him governor of the colony afterwards planted there, with succession to 
his heirs at law. These rights, proprietary as well as political, became vested 
in 'the state of Maryland at the revolution. Inasmuch as that state claims under- 
the charter, she must claim according to it. 

Virginia, by her first constitution, as a free state (June 29th, 1776) disclaimed 
all rights of property, jurisdiction, and government over territories contained 
within the charters of Maryland and other adjoining colonies. The force of 
this solemn acknowledgment is not, in our opinion, diminished by the dissatis- 
faction which Maryland, as well as other states of the confederation, afterwards 
expressed with Virginia's claim to a northern and western border, including all 
lands ceded by France to Great Britain at the pacification of 1763. 

Inasmuch as both of the states are bound by the king's charter to Lord Bal- 
timore, and both confess it to be the only original measure of their territory, it 
becomes a point of the first importance to ascertain what boundaries were as- 



4 House Doc. Xo. 6. 

signed to Maiyland by that instrument. By what lines was the colony of 
Maryland divided from those other possessions of the British Crown to which 
Virginia afterwards succeeded as a result of her independence ? 

The original patent delivered to Lord Baltimore by the king is irrecoverably 
lost, and it is denied — at least it is not admitted — that we have an accurate 
copy. It was registered in the high court of chancery when it passed the seal, 
and an attested transcript from the rolls office is produced. It was written in 
the law Latin of the pei'iod to whicli it belongs, and many of the words are 
abbreviated. Another copy nearly, if not exactly, like that from the rolls, was 
deposited in the colonial oflBce, and thence removed to the British museum. 
The latter copy was changed long subsequent to the date of the charter by a 
person who added some words, and extended others by interlining omitted 
terminations. This is alleged to have been done for the purpose of making it 
correspond with the original, wliich, according to the same allegation, was bor- 
rowed from a member of the Calvert family for that purpose. We reject this 
whole story as apocryphal. The interlineations were unauthorized except by 
the judgment of the person who wrote them, that he was supplying elipses or 
giving in full the true words meant by the contracted orthography. We are 
obliged to believe that the patent was enrolled with perfect accuracy. The 
conclusive presumption of law is that the high and responsible officers charged 
with that duty did see it performed with all due fidelity. No doubt of this 
can justly be raised upon the fact that abbreviated words are found in the regis- 
try. Why should not these be in the original ? Nay, why should we expect 
them not to be there? That mode of writing was the universal custom of the 
time. It was used ift all legal papers and records as long as the law spoke 
Latin. A deed in which these abbreviations occurred was not thereby vitiated. 
What was the harm of writing A. D. for anno domini, fi. fa. for ^eri facias, or ca. 
sa. for capias ad satisfaciendum ? Hcred. et assignat. was as good as heredihus et 
assigraius suis, if all legists understood that one as well as the other was a limita- 
tion of the fee to heirs and assigns. Adjectives and substantives without termi- 
nations to indicate gender, number, or case did not lose their meaning, and the 
omission of the concluding syllable might be some advantage to a conveyancer 
who was rusty in his syntax. This habit of contracting words pervades, not 
only the deeds, but the criminal pleadings of that time. A public accuser, 
doubtful if the offense he was prosecuting violated two acts of parliament or 
only one, charged it as contra formam staiut., and read the last word statuti or 
statuiorwn, as the state of the case might require. The defendant's averment of 
his innocence was recorded as a plea of non cuL When the attorney general 
reasserted the guilt of the accused and declared his readiness to prove it, he 
took one Latin and one Norman-French word, truncated them both, and said — 
cid. prit. Even the last and most tragical part of the record in a capital case, 
the judge's order to hang the prisoner by the neck, was curtly, but very intel- 
ligibly written — sus. per col. 

We are satisfied that the office copy is true ; that it is exactly like the origi- 
nal ; and that the use of abbreviated words does not impair the validity of the 
instrument. Moreover, that part of the charter which defines the boundaries 
of the province speaks, not equivocally, but in terms so clear and apt that the 



House Doc. No. 6. 5 

intent is readily perceived. It remains to be seen whether we can apply the 
description to the subject-matter by laying the lines on the ground. To that 
end it is necessary to ascertain how the geography of the country was under- 
stood by the king and Lord Baltimore at the time when the charter was made. 

In the great litigation between Penn and Lord Baltimore, a bill drawn up by 
Mr. Murray, (afterwards Lord Mansfield,) or by some equity pleader under his 
immediate direction, avers in substance that Charles I and the ministers whom 
he consulted on Lord Baltimore's application had the map of Captain John 
Smith before them when the boundaries of the colony were agreed on. This 
was neither denied nor admitted in the answer of the defendant, who, being 
third in descent from the applicant, had no personal knowledge about it. But 
we take the fact to be certainly true, not only because we have the assertion of 
it by Penn and his very eminent counsel, but because it is well known that 
Smith's maj) was the only delineation then extant of that region, and his His- 
tory of Virginia, to which the map was prefixed, had been before, and con- 
tinued for a long time afterwards, to be the only source of information con- 
cerning its geogra^Y^ Besides, a comparison of the map with the charter will 
show by the sim plic ity of names, spelling, &c., that one must have been taken 
from the other. 

The editions of Smith's History, published by himself in 1012 and 1629, have 
been produced, with the map thereto prefixed. Besides, we have one printed 
in 1819 by authority of Virginia from the same plate used by Smith himself, 
two hundred years before, and found, by a cui'ious accident, in a promiscuous 
heap of old metal which had been imported from England to same town in 
Pennsylvania. 

With the charter in one hand and the map in the other, it may seem an easy 
task to run these lines. But there are difficulties still. The map, though a 
marvelous production, considering how and when it was made, is not perfectly 
correct. Smith could not see and measure everything for himself, nor always 
depend upon the observations of others. With his defective instruments he 
could not get the latitude and longitude truly. He laid down some points and 
places in the wrong relation to each other, and some not unimportant to us he 
left out altogether. There are inaccui'acies here and there in the configuration 
of a coast, the shape of an island, or the course of a river. Unfortunately the 
style of his History is so confused and obscure that it throws no light on the 
dark parts of the map. As a writer, he had great ambition and small capacity. 
He could give some interest to a narrative of his own adventures, but any kind 
of description was too much for his powers. There is another trouble: scarcely 
any of the places marked on Smith's map, are now populai-ly known by the 
names he gave them. Not only the names, but the places themselves, have 
been much changed. Considerable islands are believed to have been washed 
away, or divided by the force of the waters. Headlands which stretched far 
out into the bay have disappeared, and the shore is deeply indented where in 
former times the water line was straight, or curved in the other direction. Add 
to this a certain amount of human perversity with which the subject was han- 
dled in colonial days, and it is not surprising that representatives of the two 
states have, with the most upright intentions, failed to agree in their views of 
it. We are to reach, if possible, the truth and very right of the case. 



6 House Doc. Xo. 6. 

T]3e boundaries of Maryland are described in the charter as beginning at 
Watkins' Point and running due east to the sea, up the shore of the ocean and 
the Delaware Bay, to the fortieth degree of latitude ; thence westward along 
that degree to the longitude of the headwater of the Potomac; thence south- 
ward to that river, and by it, or one of its banks, to Cinquack on the Chesa- 
peake, and from Cinquack straight across the Bay to the place of beginning. 
With the eastern and western borders we have nothing to do. Our interest in 
the description of the Marjdand line begins at the northwest angle, where her 
territory becomes contiguous to that of Virginia. 

That line, on the western side, has been run and marked along its whole 
course, and at both termini, in a way which commands the acquiescence of both 
states. No question is raised here about the location of it. But it is necessary 
to look somewhat narrowly into the call for it which the charter makes, because 
that may influence our judgment on the lines which run from the head of the 
river to the sea, every inch of which is contested. 

The state of Virginia, through her commissioners and other public authori- 
ties, adhered for many years to her claim for a boundary on the left bank of the 
Potomac. But the gentlemen who represent her before us, expressed with great 
candor their opinion that a true interpretation of the king's concession would 
divide the river between the states by a line running in the middle of it. This 
latter view they urged upon us with all proper earnestness, and it was opposed 
with equal zeal by the counsel for Maryland, who contended that the whole 
river was vi^thin the limits of the grant to Lord Baltimore. 

AVhen a river is called for as a boundary between two adjacent territories, 
(whether private property or public domains,) the line runs along the middle 
thread of the water. A concession of lands to a stream does not stop at one 
bank or cross over to the other, but finds its limit midway between them. But 
a river may be included or excluded, if the parties choose to have it so. If the 
intent is expressed that the line shall be upon one bank or another, the mere 
force of construction cannot put it anywhere else. The natural interpretation 
is the legal and proper one. 

This is too obviously just to need the support of authority. But it was well 
illustrated by the Supreme Court of the United States, in the case of IngersoU 
V. Howard, (13 How., 481.) Alabama claimed to the middle of the Chatahoo" 
chee, by virtue of a boundary described in a concession from Greorgia, thus : 
" Beginning on the ivesicrn lank of the Chattahoochee river, where the same crosses 
the boundary line between the United States and Spain; running thence up 
the said river, and along the ivesiern lank thereof," &c. The court held that these 
words established the line of boundary upon the western bank. There is some 
resemblance between that case and tlie one under consideration. 

The northern boundary of Maryland is by the charter to run westward to the 
true meridian of the first fountain of the Potomac. That point being ascer- 
tained, it shall turn at right angles and run towards (literally against) the south — 
vergendo versus meridiem^' — where? "«(/ ulierioram prcdicti Jluminis ripam^' — to the 
further bank of the aforesaid river. Approaching the river from the north, the 
further bank is the south bank of course. The description proceeds, without a 
pause, thus: "ei earn sequcndo qua plaga occidentalls ad meridionalem spectat usque ad 



House Doc. ^o. 6. 7 

locum quendam appellatum Cinquack." Now, the words, "m?n sequendo,^^ are a di- 
rection that something shall be followed in running the line between the point 
already fixed on the south bank of the Potomac, where it rises in the mountain, 
and Cinquack, which is on the same side of the river, near to its mouth. What 
shall we follow ? Clearly earn ripam, and clearly not id flumen, if we take the 
grammatical sense of the phrase. Another consideration impresses us a good 
deal. Lawyers, in the reign of Charles I, wrote Latin in the idiom of the ver- 
nacular tongue. We would naturally expect to see the thought of these parties 
expressed by words arranged in the English order, thus: ad ulterior em ripam pre- 
dicti Jluminis et sequendo earn. The other and more classical collocation was not 
adopted for its euphony, but for the sake of precision. It bi'ought ripam and 
cam into close juxtaposition, and made the antecession so immetliate that it 
could not be mistaken. The interjected phrase, '■'■ qua plaga occidentalis ad merid- 
ionalem speciat," has had its share of the minute verbal criticism bestowed upon 
the whole document; but we see nothing in it except an attempt (perhaps not 
very successful) to describe the aspect of the western shore, where it turns to 
the south. Certainly there is nothing there which requires the line to leave the 
river bank. Apart from all this, it looks utterly impi'obable that the two termini 
of this line should both have been fixed on the south side of the river without 
a purpose to put the line itself on the same side. The intent of the charter is 
manifest all through to include the whole river within Lord Baltimore's grant. 
It seems to us a clearer case than that decided in Ligersoll v. Howard. 

For these reasons we conclude that the charter line was on the right bank of 
the Potomac, where the high-water mai'k is impressed upon it, and that line 
follows the bank along the whole course of the river, from its first fountain to 
its mouth, and ^^ usque ad locum quendam appellatum Cinquack.^' 

Where is the place called Cinquack? It must have had a certain degree of 
importance in Smith's time as a landing place, a village, or the residence of 
some aboriginal chief. But there is now no visible vestige of it. Even its 
name has perished from the memory, of living men. Nevertheless, the place 
where it once was can be easily found. The charter describes it as "prope 
Jluminis ostium^^ — near the mouth of the river; and Smith has marked it on his 
map about six miles south of the place where the river joins the bay. This 
point was no doubt chos^en as the terminus of the long river line, because it 
was the only place near the mouth of the Potomac, on that side, to which 
Smith's map gave a name ; and it furnishes one among many circumstantial 
proofs that no other map was consulted in drafting the charter. Having found 
this corner, it becomes our duty to trace the lines which lead us thence over 
the bay and across the eastern shore to the sea. 

From Cinquack to the ocean the charter gives only two lines. One, starting 
at Cinquack, goes straight to Watkins' Point, the other runs from Watkins' 
Point due east to the seashore. There will be no possible mistake about these 
lines if we can find out the precise situation of Watkins' Point. 

This point being the commencement and closing place of the boundary is 
twice named, and once its locality is given with reference to other objects. It 
is described as lying "JM.rto sinum predictum prope flumen de Wighco ;" that is to 
say, on (or close to) the aforesaid bay (the Chesapeake) and near the river 



8 House Doc. Xo. 6. 

Wighco. Looking at Smith's map we find a cape extending southwestwardly 
from the mainland of the eastern shore. This cape is called "Watkins' Point 
by Smith himself on his map, and he has marked the waters on one side 
Ckesapeack Bay, and on the other Wighco fltimen. Turning to the modern maps, 
and especially to those of the Coast Survey, where everything is measured with 
fractional accuracy, we find the same point of land laid down, not quite in the 
same latitude nor delineated with exactly the same shape, but bordered by the 
same waters, and with no variance which makes its identity at all doubtful. It 
is at present the extreme southwestern point of Somerset county in Maryland 
at Cedar Straits, juxta the Chesapeake and prope the Pocomoke, which is now 
the name for Wighco. Being the Watkins' Point of Smith's map, it is the 
Watkins' Point of the charter. 

This conclusion appears to be inevitable from the premises stated; but it does 
not receive universal assent. We must therefore notice the principal grounds 
on which its correctness is impugned. 

In the first place, the fundamental fact is denied that Smith, by his own map, 
affixed the name of Watkins' Point to the headland in question. In other words, 
it is alleged, that though the point is laid down and the name written in 
proximity to it, the one does not apply to the other. Let the map speak for 
itself. An inspection of it will show that all the names of such points are 
written in the same way. Nor is there any other point to which it can, with 
reasonable propriety, be referred. 

The map has been uniformly read as we read it. Lord Baltimore showed 
how he understood it. In 1635, only three years after the date of his charter, 
he printed what he called a " Relation of Maryland," and prefixed to it a map 
on which Watkins' Point is laid down at Cedar Straits, with the beginning and 
closing lines of his boundary running from and to it. It is not likely that he 
could be mistaken, nor is it supposed that he fraudulently misstated the fact, 
and he was not contradicted by the ministers of the Crown or by anybody in- 
terested in the Virginia plantation. 

In 1670 Augustin Ilerrman, the Bohemian, published a map fuller than the 
previous ones, and there we have Watkins' Point at Cedar Straits verj- con- 
spicuously marked, and the two lines closing at its southern end. What makes 
this stronger is, that in 1668 the line between the colonies had been marked 
east of the Pocomoke by Calvert and Scarborough oh a latitude considerably 
higher than an eastern line from Watkins' Point; but Herrman considered 
Watkins' Point so definitely fixed, and the call for a straight eastern line thence 
to tlie ocean so overruling, that he assumed the coincidence of the Scarborough 
line with his own, and so laid it down. 

In the map of Peter Jefferson and Joshua Fry, of which a French copy was 
engraved and printed at Paris in 1755, and a second English edition at London 
in 1775, dedicated by tne i)ublishers to the Lords Commissioners of Trade and 
Plantations, we find Watkins' Point unmistakablj' laid. down at the mouth of 
the Pocomoke, with the Scarborough and Calvert line from the sea to the Poco- 
moke so drawn that a westward extension of it would strike exactly, or very 
nearly, that place. 



House Doc. No. 6. 9 

^Mr. Thomas Jefferson published his Notes on Virginia in 1787, with a map, 
on which the strongly-marked boundary runs to the ocean by an East line from 
Watkins' Point at Cedar Straits; and he, like Herrman and the others, took it 
for granted that this, and no other, was the line marked by Scarborough and 
■Calvert. 

Mitchell's map (1750-1755) bears similar testimony to the situation at Wat- 
kins' Point. So do several others of the last century and many of more recent 
times. 

It is useless to particularize more authorities like these. Let it be enough to 
say, that all geographers for two centuries and a half have understood Smith's 
majD as calling what is now the southern extremity of Somerset county Wat- 
kins' Point; nor is it known otherwise in the general speech of the country. 
Smith's designation has adhered to it through all changes. If that be not its 
true name, it never had any name at all. 

But the fact rests on stronger proof than that. It is established by the uni- 
form and universal consent of both states and all their people. Maryland 
steadily claimed it as her actual border, and Virginia never practically denied 
the claim by taking territory immediately above it. Eastward and westward, 
where the lines were invisible, both jiarties made mistakes. But Watkins' 
Point or the territory near it was not debatable ground. All men, except per- 
haps Colonel Scarborough, recognized'and respected the great landmark when 
they came within sight of it. 

But even that is not all. In 1785 some of the most eminent men of the two 
states came together at Mount Vernon to arrange the difficulties between 
them. Standing face to face, those commissioners concurred in saying that 
Watkins' Point was the boundary mark to which the line from the western 
shore would run; and they described its situation very unequivocally when 
they spoke of it as ''Watkins' Point, near the mouth of the Pocomoke river." 
Kemembering that this compact was di'awn up with most conscientious care, 
agreed to after cautious examination, ratified by the legislatures of both states, 
rigidly adhered to by all parties ever since, and still i-egarded as of such sacred 
obligation that all power to touch it is withheld from us, we feel ourselves lite- 
rally unable to fix the Watkins' Point of the charter anywhere else than at 
the place then referred to as the true one. 

It is suggested that the charter could not have meant the point at Cedar 
Straits, because it is called a promontory, which implies high land, whereas this 
is a dead level, rising but slightly above the waters on either side. That argu- 
ment is easily disposed of The map did not indicate whether the land was 
high or low, and therefore care was taken to employ two alternative terms, of 
which one would surely fit the case if the other would not. The charter says 
that the beginning line shall run east to the ocean "a promontorio sive capite 
TERR.E wcaio Watkins' Point;" from the promontory or headland. The same 
abundamt caution is observed again when the point comes to be mentioned as 
the terminus of the closing line, which is required to run ''per lineam brevissimam 
usque ad predictum promontorium siVE locum vocatum Watkins' Point." Thus the 
controlling call of the charter is for Watkins' Point, by its given name, whether 

2 



10 House Doc. Xo. 6. 

it be a high promontoiy or a low headhind, or merely a place whose character is 
not properly signified by eitlier word. 

We proceed to another objection. Sraitli, in his account of the explorations 
made by himself and others with him, says, in eflPect, that they landed at divers 
places mentioned (among others Watkins' Point), and at all those places marked 
trees with crosses, as "a notice to any. Englishmen had been there.'" Xow 
there are not, and probably never were, trees capable of being so marked on 
the Watkins' Point which lies at Cedar Straits; therefore, it is argued that 
Watkins' Point is not Watkins' Point. Those who think this deduction legiti- 
mate would remove the point in question from the place where Smith puts it 
on his maj), where all geographers have placed it, where the charter describes 
it to be, and where by the general consent it is, rather than believe that Smith, 
in his confused way of writing, exaggerated the truth or committed an error 
about so unimportant a matter as that of marking trees at all points where he 
landed. 

It is alleged that another place, higher up the shore and near to the mouth 
of the Annamessex, is the true AVatkins' Point of the charter. There is (or 
rather there was) a point there of considerable magnitude and some elevation, 
which has now entirely disappeared. Smith noted it as a triangular extension 
of the mainland into the bay; in 1665 persons, who had then recently seen it, 
described it as "a small spiral jioint," whatever that may mean; and later evi- 
dence shows that there was a i)each orchard upon it. In a sworn affidavit of 
Captain Jones, used in 1665 by Virginia, it is referred to as "a small point 
described on Captain Smith's map without a name." Why should we suppose 
this to be the place called for in the charter as Watkins' Point? It was not so 
nominated on the map, or anywhere else. Smith, so far from ever speaking or 
writing about it as Watkins' Point, gave it another and a different name. Dr. 
Eussell, who was with him when he made his explorations, says that it was 
called Point Ployer, "in honor of that most honorable house of Monsay, in 
Brittaine, that in an extreme extremity once relieved our Captaine." Can any 
thing be more complete than the failure of this effort to substitute the place 
called Point Ployer for the place called Watkins' Point? 

But it is said that Scarborough and Calvert agreed in 166S that the line from 
the sea should run to the Annamessex, and not to the Pocomoke. That is not 
the point of the present question. We are now inquiring where the boundaries 
Avere originally fixed. A conventional arrangement of those commissioners 
might bind their constituents for the after time, but it could not change the 
pre-existing facts of the case or make that a false, which before Ayas a true, 
interpretation of the charter. Nor is any opinion or conclusion expressed or 
acted upon by them entitled to much consideration as evidence. If Philip 
Calvert (hovght that the charter limit was at Point Ployer, he was grossly 
deceived, and Colonel Scarborough knew very well that it was not there, for he 
had previously declared on his corporal oath that the " small spiral poini " near 
the Annamessex was south of the charter call "about as far as a man could see 
on a clear day." 

Some stress is laid upon another fact. In 1851 the Fashion, a vessel of wliich 
John Tyler, a Marylander, was owner and master, was arrested for dredging in 



House Doc. K"o. 6. 11 

Marj'land waters. The justice of the peace before whom the proceeding was 
instituted condemned her, but on appeal to the county court the judgment 
was reversed. The record does not show the grounds of the condemnation or 
the reasons of the reversal; but Tyler himself deposes from memory that he 
was finally cleared on the testimony of two old men, who swore to a state line 
running across Smith's Island about three-quarters of a mile above Horse Ham- 
mock, and over the bay to the mouth of the Annamessex, which would throw 
the locus in quo of the offence within the jurisdiction of Virginia. If we assume 
that the issue, the evidence, and the legal reasons of the judgment, are cor- 
rectly reported by an unlearned man a quarter of a century after the trial, the 
inference is a fair one that the court of Somerset county believed, the line to be 
where the witnesses said it was, and not at Horse Hammock on one side of 
Tangier Sound, or at Watkins' Point on the other. But are we now bound to 
accept that evidence as infallibly true? If it were delivered before us in the 
pending cause by the witnesses themselves, we would take it at its worth. Its 
probative force is certainly not increased by being fished up from the oblivion 
of twenty-five years and produced to us at second hand. We do not under- 
stand that anybody supposes the judgment itself to be binding as a determina- 
tion of the subject matter between the two' states. The traditionary line of 
Tyler's grandfather and old Mr. Lawson must stand or fall by the natural 
strength of the facts which support and oppose it. Now it is perfectly ascer- 
tained that Virginia in 1851 did not pretend to have any claim on Smith's 
Island above Horse Hammock, nor within the limits of Somerset county on 
the bay shore above Watkins' Point. This record of the Fashion case, con- 
sidered as evidence of a line at Annamessex, is illegal, insufficient, and unsatis- 
factory, while the proofs which show that in truth the line was at Watkins' 
Point are irresistible and overwhelming. 

If we are right thus far, it follows that the original line as fixed and agreed 
by the King and Lord Baltimore runs from Cinquack by a straight line to the 
extreme southwestern part of Somerset county, Maryland, which we find to be 
the true Watkins' Point of the charter, and thence by a straight line to the 
Atlantic ocean. These lines will be seen on the accompanying map, marked 
and shaded in blue. 

But this is not the present boundary. How firmly soever it may have been 
fixed originally, a compact could change it, and long occupation inconsistent 
with the charter is conclusive evidence of a concession which made it lawful. 

Usucaption, prescription, or the acquisition of title founded on long posses- 
sion, uninterrupted and undisputed, is made a rule of property between indi- 
viduals by the law of nature and the municipal code of every civilized country. 
It ought to take place between independent States, and according to all au- 
thority it does. There is a supreme necessity for applying it to the dealings of 
nations with one another. Their safety, the tranquility of their people, and 
the general- interests of the human race do not allow that their territorial rights 
should remain uncertain, subject to dispute, and forever ready to occasion 
bloody wars. (See Vattel, Book II, chap. 11, and Wheaton, Part II, chap. 4, 
sec. 4, citing Grotius Puflfendorf and Rutherforth.) The length of time which 
creates a right by prescription in a private party raises a presumption in favor of 



12 House Dqc. Xo. 6. 

a state, that is to saj^, twenty years. (Knapp's Rep., CO to 73.) It is scarcely 
necessary to add that the exercise of a privilege, the perception of a profit, or 
the enjoyment of what the common law calls an easement, has the same effect 
as the possession of corporeal property. It behooves us, then, to see whether 
the acts or omissions of these states have or have not materially changed their 
original rights and modified their boundaries, as described in the charter. We 
will look first at the Potomac. 

The evidence is sufficient to show that Virginia, from the earliest period of 
her history, used the South bank of the Potomac as if the soil to low water- 
mark had been her own. She did not give this up by her Constitution of 1776, 
vrhen she surrendered otherclaims within the charter limits of Maryland ; but 
on the contrary, she expressly reserved " the property of the Virginia shoi-es 
or strands bordering on either of said rivers, (Potomac and Pocomoke,) and all 
improvements which have or will be made thereon." By the compact of 1785, 
Maryland assented to this, and declared that "the citizens of each State re- 
spectively shall have full property on the shores of Potomac and adjoining their 
lands, with all emoluments and advantages thereunto belonging, and the privi- 
lege of making and carrying out wharves and other improvements." We are 
not authority for the construction of this compact, because nothing which con- 
cerns it is submitted to us ; but we cannot help being influenced by our con- 
viction (Chancellor Bland notwithstanding) that it applies to the whole course 
of the river above the Great Falls as well as below. Taking all together, we 
consider it established that Virginia has a proprietary right on the south shore 
to low water-mark, and, appurtenant thereto, has a jirivilege to erect any struc- 
tures connected with the shore which may be necessary to the full enjoyment 
of her riparian ownership, and which shall not impede the free navigation or 
other common use of the river as a public highway. 

To that extent Virginia has shown her rights on the river so clearly as to 
make them indisputable. Her efforts to show that she acquired, or that Mary- 
land lost, the islands or the bed of the river, in whole or in part, have been 
less successful. 

To throw a cloud on the title of Maryland to the South half of the river, the 
fact is i^roved that in 1GS5 the King and Privy Council determined to issue a 
Quo Warranto against the Proj^rietary of Maryland, " whereby the powers of 
that charter and the government of that province might be seized into the 
King's hands" for insisting on "a pretended right to the ivhole river of Potow- 
mack " and for other misdemeanors. This was a formidable threat, considering 
what a court the King's Bench was at that time; but it never was carried out, 
and we can infer from it only that the then Lord Baltimore was not in favor 
with the ministry of James II. 

What is called the Ilopton grant was confirmed to the Earl of St. Albans and 
others in 1G67 by Charles II. It included all the land between the Rapjiahan- 
nock and the Potomac, together with the islands xvithin the banks of those rivers and 
the rivers themselves. The rights of the original grantees became vested in Lord 
Fairfax and his heirs, who sold large portions of it, and as to the rest, the com- 
monwealth first took it by forfeiture and afterwards bought out the Fairfax 
title from the alienees of his heirs. It is not pretended that this grant could. 



House Doc. No. 6. 13 

propria vigore, transfer the title of the Potomac islands from Lord Baltimore to 
the Earl of St. Alban's ; but it is argued that, as Lord Baltimore must have 
known of it, and did not protest or take any measure to have it cancelled, his 
silence, if not conclusive against him by way of equitable estoppel, was at least 
an admission that he did not own the islands or the bed of the river in which 
they lay. "VVe answer that he had a right to be silent if he chose ; his elder 
and better title, which was a public act, seen and known of all men, spoke 
for him loudly enough. Besides that, his subsequent possession of the islands 
was the most emphatic contradiction he could give to any adverse claim, or 
pretense of claim, under the Hopton grant. 

But these conflicting grants of the islands increased the importance of know- 
ing how and by whom they had been occupied. The exclusive possession of 
Maryland was affirmed and denied upon evidence so uncertain that we thought 
it right to postpone our determination for several weeks, so as to give time for 
the collection of proper proofs. When these came forth they showed satisfac- 
torily that Maryland had granted all the islands, taxed the owners, and other- 
wise exercised proprietary and political dominion over them. Three Virginia 
grants were produced which purported to be for islands in the Potomac, but on 
examination of the surveys it appeared that they were not in, but upon, the 
river. One is in Nomini Bay, and the other two are called islands only because 
they lie with one side on the shore, while the other sides are bounded by inland 
creeks. All are on the Virginia side of the low-water mark, which we have said 
was the boundary between the states. 

It being thus shown that there is nothing to deflect the line from the low- 
water mark, we ar^ next to see whether its eastern terminus has been changed. 
That it certainly has. Cinquack was quietly ignored so long ago that no recol- 
lection, nor even tradition, exists of any claim by Maryland on the bay shore 
below the Potomac. When the compact of 1785 was made. Smith's Point, pre- 
cisely at the mouth of the river, on the south side, was assumed by both states 
to be the starting place of the line across the bay. 

Nor does the line now run from Smith's Point, per lineam brevissimam, to Wat- 
kins' Point. It holds a course far north of that, so as to strike Sassafras Ham- 
mock, on the western shore of Smith's Island, and take in Virginia's old pos- 
session there. It reaches Watkins' Point, not by the one straight line called 
for in the charter, but by a broken line, or rather by several lines uniting at 
angles more or less sharp. Before we explain how this came about it is neces- 
sary to observe some facts in the general history of the eastern-shore boundary. 
While the situation of Watkins' Point at the mouth of Pocomoke was not 
doubted, nobody knew where the lines running to and from it would go, or 
what natural objects they would touch in their course. East and west, where- 
ever the solitary landmark could not be seen, a search for the boundary was 
mere guess-work, and some of the conjectures were amazingly wild. The peo- 
ple there seem to have had none of that ready perception of courses and dis- 
tances which an Indian possesses intuitively, and which a pioneer of the 
present day acquires with so much facility. 

Almost immediately after the planting of the Maryland colony, some of its 
officers claimed jurisdiction on the eastern shore, nearly twelve miles south of 



14 House Doc. Xo. 6. 

a true east line from Watkins' Point. Sir John Harvey, "[then governor and 
captain-general of Virginia, with the advice of the council, conceded the 
claim, and on the 14th of October, 1638, issued a proclamation, declaring the 
boundary to be on the Anancock, and commanding the inhabitants of his colony 
not to trade with the Indians north of that river. We discredit the allegation 
that this was a fraudulent collusion between the governor of Virginia and the 
agents of the Maryland proprietary. It was a mutual mistake — a very gross 
one to be sure — and not long persisted in. It served now only to show how 
loose were the notions of that time about these lines. 

Soon after this (but the time is not ascertained) a similar blunder was made 
westward of Watkins' Point. This was not a claim by Maryland below the true 
line, but by Virginia above it. Smith's Island lies out in the Chesapeake Bay, 
quite north of any possible line called for by the charter. But the relative sit- 
uation of that island being misapprehetided, Virginia took quiet and unopj^osed 
possession upon it, and holds a large part of it to this day. 

No wilful transgression of the charter boundary took place before 1G64. Then 
rose Col. Edmond Scarborough, the King's surveyor-general of Virginia. His 
remarkable ability and boldness made him a jDower in Virginia, and gave him 
great mental ascendency wherever he went. He had no respect for Lord Balti- 
more's rights, and, when he could not find an excuse for^invading them, he did 
not scruple to make one. -At the head of forty horsemen, "for pomp and safe- 
ty," he made an irruption into the territory of Maryland, passing Watkins' 
Point, and penetrating as far as Monoakin, where he arrested the officers of the 
Proprietary and harried the defenceless people. 

To justify this proceeding he referred to an act of the grand assembly of 
Virginia, (passed without doubt by his influence,) which declares Watkins' Point 
to be above Monoakin, authorizes the survej'or-general to make publication com- 
manding all persons south of Watkins' Point to render obedience to his majes- 
ty's government of Virginia, and requiring Col. Scarborough, with Mr. John 
Catlett and Mr. John Lawrence, or one of them, to meet the Maryland authori- 
ties, upon due notice, (if they were not fully convinced of their intrusions,) and 
debate and determine the matter with them. Scarborough did none of these 
things. His conduct throughout violated the act of the Virginia assembly as 
grossly as it violated the Maryland charter. 

To vindicate the claim for a boundary as high up as Manoakin, he put in his 
own affidavit, and that of seven others, that the place described in Ciipt. Smith's 
map for Watkins' Point, was not at the Pocomokc nor at the Annamessex, but 
as far above the small spiral point at the mouth of the latter river as a man 
could see in a clear day, and that the Pocomoke was never called or known by 
the name of Wighco. This was sworn to in the very liice of the map itself, 
where Watkins' Point was described as lying on the Pocomoke, and where the 
Pocomoke was distinctly named the Wighco. \ 

In June, 1G64, Charles Calvert, lieutenant-governor of Maryland, sent Philip, 
the chancellor, on a special mission to Sir William Berkeley, then governor- of 
Virginia, to demand justice upon Scarborough for entering the province of Ma- 
ryland in a hostile manner, for outraging the inhabitants of Annamessex and 
Manoakin by blows and imprisonment, for attempting to mark a boundary thirty 



House Doc. Xo. 6. 15 

miles north of Watkins' Point, and for publishing a proclamation at Manoakin 
wholly unauthorized. Col. Scarborough was too great a man to be punished, 
but his acts were repudiated, the claim for his spurious boundary was disavowed, 
Watkins' Point was again fully acknowledged to be where it always had been, 
and so the land had rest for a season. 

But the quiet time did not last long. The very next year we find Colonel 
Scarborough on the east side of the Pocomoke, north of the boundary, cutting 
out a large body of Lord Baltimore's land, and dividing it by surveys to himself 
and his friends. The necessity was manifest for having the true line traced and 
marked on the ground between Watkins' Point and the sea. To do this Colo- 
nel Scarborough was appointed a commissioner on one side, and Philip Calvert 
on the other. But, instead of closing the controversy as their respective con- 
stituents intended, their work was done so imperfectly that it has been a prin- 
cipal cause of error and misunderstanding ever smce. 

Their instructions, as recited by themselves, required them to "meet upon 
the place called Watkins' Point." That they did m^et there does not appear, 
but they say that, "after a full and perfect view of the point of land made by 
the north side of Pocomoke Bay and the south side of Annamessex, we have 
and do conclude the same to be Watkins' Point, from which said point, so called, 
we have run an east line, agreeable with the extremest part of the western 
angle of said Watkins' Point, over the Pocomoke river, to the land near Eobert 
Holston's, and there have marked certain trees which are continued by an east 
line to the sea," &c. ; and they agreed that this should be I'eceived as the 
bounds of the two provinces "on the eastern shore of the Chesapeake bay." 
Whosoever shall try to get at the sense of this document, will find himself 
*' perplexed in the extreme." What was it that they concluded to be Watkins' 
Point ? Not the whole body of the territory between the Annamessex and 
the Pocomoke. Nobody understands it in that way. Not Point Ployer ; for 
they both knew, and one of them swore, it was not there. Did they actually 
run any line west of the Pocomoke ? If yes, they must have known with per- 
fect certainty where the true line would cross the river ; and in that case, what 
was the necessity for founding a mere conclusion about it upon the lay of the 
land between the two bays? If it was then ascertained by actual demonstra- 
tion with the compass that a western extension of the marked line would strike 
Watkins' Point, why does it not strike that point now, instead of terminating, 
where it does, far above, at the Annamessex? Again, why was it not marked ? 
Why was it never recognized, acknowledged, or claimed by either party after- 
wards? Our rendering may seem a strain upon the words, but we infer from 
the paper and the knoYvn facts of the case, that the commissioners, instead of 
meeting at Watkins' Point, came together on the east bank of the Pocomoke, 
from thence took a view of the country on the other side, and thereupon 
erroneously concluded that an east line running from Watkins' Point would 
cross the Pocomoke at the place near Holston's, where they marked certain 
trees. ThJ^ being satisfactory to themselves, they proceeded, without further 
preliminary, to mark the eastern end of the line between the river and the sea. 

Scarborough may have known that he was not on the true line, but if so he 
kept his knowledge to himself. It is very certain that Calvert had full faith in 



16 House Doc. Xo. 6. 

the correctness of his work. No doubt he lived and died in the belief that the 
marks he assisted to make were on a due east line from the westermost angle 
of "Watkins' Point, properly so called. If any one thinks this a.blunder too gross 
to be credited, let him remember by whom it was shared. Herrman and all sub- 
sequent mapmakers place the marks on the straight line where Calvert thought 
it was. All the public men of the colonies had the same opinion. The error 
was not discovered, nor even suspected, for more than a hundred years. 

But it is argued that the call of the charter is for a straight line ; that com- 
missioners were appointed to ascertain where it ran ; that they did ascertain it, 
and marked a part of it; that their judgment being conclusive, the whole line 
is established as certainly as if it had been marked. So far as this is a geomet- 
rical proj^osition, it is undoubtedly true. Bnt mathematics cannot determine 
this case against law and equity. 

Their own description of the line they agreed upon is inconsistent with itself. 
They call it an east line from Watkins' Point, and give it an outcome by a 
course corresponding with,IIolston's tree. If this be a straight line, how shall 
we find it? If we begin at Watkins' Point and run east to the sea, we go far 
below the marked line ; if we begin at the marks and run west to the bay, we 
reach the Annamessex, which is equally wide of the fixed terminus at that end. 
Yet by one way as much as by the other, we follow the agreed line of the com- 
missioners. We reconcile these contradictions, and carry out the whole agree- 
ment, if we run the east line from Watkins' Point until it begins to conflict 
with the marked line, and from there to the ocean let the marked line be taken 
for the exclusively true one. 

Plainly, it never was intended by the commissioners, or anybody else, that 
the territory west of the Pocomoke should be divided by a line extending 
westward from Holston's to the mouth of the Annamessex. If that was the 
technical effect of the agreement, it was instantly repudiated by the common 
consent of both provinces. Maryland had held before, and continued after- 
wards to hold and possess, all the territory between the Pocomoke and the Bay 
down to the latitude of Watkins' Point, granting the lands, taxing them in the 
hands of her gi'antees, and ruling all the inhabitants according to her laws and 
customs. Her jurisdiction was not intermitted, nor any of her rights suspen- 
pended, for a moment. Virginia never expressed a suspicion that this posses- 
sion of Maryland was inconsistent with any right of hers under the agreement. 
Scarborough himself acquiesced in it to the day of his death as a true con- 
struction of his covenants with Calvert. 

Our conclusion is that Virginia, by the agreement and her undisturbed oc- 
cupancy, has an undoubted title to the land east of the Pocomoke, as far north 
as the Scarborough and Calvert line, while Maryland, by the charter and by 
her continued possession under it, has a perfect right to the territory west of 
the Pocomoke and north of Watkins' Point. 

We must now go back to Smith's Island. That island is clearly north of 
the charter line, and all the rights which Virginia has there must depend on 
the proofs which she is able to give of her possession. The commissioners, 
agents, and counsel on both sides have, with infinite labor, collected a great 
volume of evidence on this part of the case, and discussed it at much length. 



House Doc. Xo. 6. 17 

In early times Virginia granted lands high up on the island; and Marjdand, 
without expressly denying the right of Virginia, made grants of her own in 
the same region. The lines of these grants are so imperfectly defined by the 
surveys that it is not at all easy to tell where they are, and some of them are 
believed to lie afoul of others. The occupancy, like the titles, was mixed and 
doubtful. The inhabitants did not know which province they belonged toj 
at least that was a subject on which there were divers opinions. 

A line running nearly across the middle of the island was at first claimed by 
Virginia as being the old boundary; but a subsequent personal examination 
and a more careful reconsideration of the evidence brought the -counsel them- 
selves to the opinion that a claim by that line could not be supported. They 
insisted, however, and do still insist, that another line, which runs about three- 
quarters of a mile above that from Sassafras Hammock to Horse Hammock 
was and is the true division. There is some evidence that this was once thou-^ht 
to be the boundary. 

Two grants, one by Maryland and one by Virginia, each calling for the divi- 
sional line between the states, without describing where the divisional line 
was, were so located on the ground that they met on the line in question. It 
is inferred from this that a line had been previously run at that place, which 
was understood to be the division between the provinces or the states. But 
this argument a priori is all that sup»ports the theory of a state line there. If 
it ever was actually run, it cannot now be told by whom, when, for what pur- 
pose, by what authority, or precisely where. All the evidence relating to it is 
very doubtful. It dates back to what may be called the prehistoric times of 
the island. Some witnesses affirm and others deny, on the authority of their 
forefathers, that this was the dividing line of the states. But none of them 
can give ahy substantial grounds for his belief. 

Out of this contradictory evidence and above the obscurity of vague tradition 
there rises one clear and decisive fact, which is this : That for at least forty 
years last past Maryland has acknowledged the right of Virginia up to a line 
which, beginning at Sassafras Hammock, runs eastward across the island to 
Horse Hammock, and Virginia has claimed no higher. By that line alone both 
states have limited their occupany for a time twice as long as the law requires 
to make title by prescription. By that line Maryland has bounded her election 
district and her county. North of it all the people vote and pay taxes in 
Maryland, obey her magistrates, and submit to the process of her courts. 
South of it lies, undisturbed and undisputed, the old dominion of Virginia. 
We have no doubt whatever that we are bound to regard that as being now the 
true boundary between the two states. There are not two adjoining farms in 
all the country whose limits are better settled by an occupancy of forty years, 
or whose owners have more carefully abstained from all intrusion upon one 
another within that time. 

We have thus ascertained to our entire satisfaction the extent and situation 
of the territory which each state has held long enough to make a title by pre- 
scription, and the boundary now to be determined must conform to those 
possessions, no matter at what expense of change in the original lines. We 
3 



18 House Doc. Xo. 6. 

know therefore Low the land is to be divided. But how does prescriptive title 
to land affect the right of the parties in the adjacent waters? 

It has been argued with great force and ingenuity that a title resulting 
merely from long possession can apply only to the ground which the claimant 
has had under his feet, together with its proper appurtenances; that a river, a 
lake, or a bay is land covered with water; that land cannot be appurtenant to 
land; that therefore title by prescription stops at the shore. But this is 
unsound, because the water in such a case is not claimed as appurtenant to the 
dry land, but as part of it. One who owns land to a river owns to the middle 
of the channel'. Upon the same principle, if one state has the territory on 
both sides the whole river belongs to her. Nor does it make any difference 
how large or how small the body of water is. The Romans called the Mediter- 
ranean Mare Nostrum, because her territory surrounded it on all sides. This 
construction applies with equal certainty to every kind of title, whether it be 
acquired by express concession, by lawful conquest, or by the long continuance 
of a possession which, at first, may have been but a naked trespass. In the 
last case the silent dereliction of the previous proprietor implies a grant of his 
whole I'ight as fully as if it had been given by solemn tjeaty. 

A few observations upon the several sections of the J^roken line which we 
adopt in place of the straight line of the charter will suffice to apply the prin- 
ciples we have endeavored to set forth. 

We run to Sassafras Hammock and from that to Horse Hammock, because 
we cannot in any other possible way give Virginia the part of Smith's Island 
to which she shows her right by long possession. 

We go thence to the middle of Tangier Sound and from thence downward 
we divide Tangier Sound equally between the two states, because the possession 
of Virginia to the shore is proof of a title whose proper boundary is the middle 
of the water. We give Maryland the other half of the sound for the same or 
exactly a similar reason, she being incontestibly the owner of the dry land on 
the opposite shore. 

The south line dividing the waters stops where it intersects the straight line 
from Smith's Point to Watkins' Point, because this latter is the charter line, as 
modified by the compact, and Maryland has no rights south of it. 

From that point of intersection to Watkins' Point we follow the straight 
line from Smith's Point, there being no possession or agreement which has 
changed it since 1785. 

At Watkins' Point the charter line has stood unchanged since 1632, and the 
call for a due east line from thence must be followed until it meets the middle 
thread of the Pocomoke. At the place last mentioned the boundary turns up 
the Pocomoke, keeping the middle of the river until it crosses the Calvert and 
Scarborough line. It divides the river that far because the territory on one side 
belongs to Maryland and on ihe other to Virginia. 

From the angle formed by the Scarborough and Calvert line with the line 
last described through the middle of the Pocomoke, the boundary follows the 
marked line of Scarborough and Calvert to the seashore. 

It will be readily perceived that we have no faith in any straight-line theory 
which conflicts with the contracts of the parties, or gives to one what the other 



House Doc. No. 6. 19 

has peaceably and continuously occupied for a very long time. The broken 
line which we have adopted is vindicated by certain principles so simple so 
plain, and so just, that we are compelled to adopt them. They are briefly as 
follows : ^ 

1. So far as the original charter boundary has been uniformly observed and 
the occupancy of both has conformed thereto, it must be recognized as the 
boundary still. 

2. Wherever one state has gone over the charter line taken territory which 
originally belonged to the other and kept it, without let or hindrance, for more 
than twenty years, the boundary must now be so run as to include such terri- 
tory within the state that has it. 

3. Where any compact or agreement has changed the charter line at a par- 
ticular place, so as to make a new division of the territory, such agreement is 
binding if it has been followed by a corresponding occupancy. 

4. But no agreement to transfer territory or change boundaries can count for 
anything now, if the actual possession was never changed. Continued occu 
pancy of the granting state for centuries is conclusive proof that the agreement 
was extinguished and the parties remitted to their original rights. 

5. The waters are divided by the charter line where that line has been undis 
turbed by the subsequent acts of the parties; but where acquisitions have been 
made by one from the other of territory bounded by bays and rivers such 
acquisitions extend constructively to the middle of the water. ' 

Maryland is by this award confined everywhere within the original limits of 
her charter. She is allowed to go to it nowhere except on the short line run 
ning east from Watkins' Point to the Middle of the Pocomoke. At that place 
Virginia never crossed the charter to make a claim. What territory we adjudge 
to Virginia north of the charter line she has acquired either by compacts fairt 
made or else by a long and undisturbed possession. Her right to this terri- 
tory, so acquired, is as good as if the original charter had never cut it off to 
Lord Baltimore. We have nowhere given to one of these states anythin<^ 
which fairly or legally belongs to the other; but in dividing the land and the 
waters we have anxiously observed the Eoman rule suum cuique trihuere. 

J. S. BLACK, Pennsylvania. 
A. W. Graham, Secretary. ^^^^' =^' J^NKIxXS, Georgia, 



20 House Doc. Xo. 6. 



^TV^A^RD. 



And now, to wit, January 16, Anno Domini 1877, the undersigned, being a 
majority of the arbitrators to whom the states of Virginia and Maryland, by 
acts of their respective regislatures, submitted the controversies concerning 
their territorial limits, with authority to ascertain and determine the true line 
of boundary between them, havijig heard the allegations of the said states and 
examined the proofs on both sides, do find, declare, award, ascertain, and de- 
termine tiiat the true line of boundary between the said states, so far as they 
are conterminous with one another, is as follows, to wit : 

Beginning at the point on the Potomac river where the line between Vir- 
ginia and West Virginia strikes the said river at low-water mark, and thence 
following the meanderings of said river by the low-water mark to Smith's 
Point at or near the mouth of the Potomac, in latitude 37° 53^ 08'^ and longi- 
tude 76° 13^ 46'^ ; thence crossing the waters of the Chesapeake Bay, by a line 
running north 65° 30^ east, about nine and a half nautical miles, to a point on 
the western shore of Smith's Island, at the north end of Sassafras Hammock, 
in latitude 37° 57^ 13'^, longitude 76° 02' 52'^ ; thgnce across Smith's Island 
south 88° 30' east five thousand six hundred and twenty yards, to the center of 
Horse Hammock, on the eastern shore of Smith's Island, in latitude 37° 57' 
08", longitude 75° 59' 20"; thence south 79° 30' east four thousand eight hun- 
dred and eighty yards, to a point marked ''A " on the accompanying map, in 
the middle of Tangier Sound, in latitude 37° 56" 42", longitude 75° 56' 23", 
said point bearing from Jane's Island light south 54° west, and distant from 
that light three thousand five hundred and sixty yards; thence south 10° 30' 
west four thousand seven hundred and forty yards, by a line dividing the 
waters of Tangier Sound, to a point where it intersects the straight line from 
Smith's Point to Watkins' Point, said point of intersection being in latitude 
37° 54' 21", longitude 75° 56' 55", bearing from Jane's Island light south 29° 
west, and from Horse Hammock south 34° 30' east. This point of intersection 
is marked "2J" on the accompanying map. Thence north 85° 15' east six 
thousand seven hundred and twenty yards along the line above mentioned, 
which runs from Smith's Point to Watkins' Point until it reaches the latter 
spot, namely, Watkins' Point, which is in latitude 37° 54' 38", longitude 75° 
52' 44". From Watkins' Point the boundary line runs due east seven thou- 
sand eight hundred and eighty yards, to a point where it meets a line running 
through the middle of Pocomoke Sound, which is marked " C '•' on the accom- 



House Doc. Xo. 6. 21 

panying map, and is in latitude 37° 5V 38'^, longitude 75° 47^ 50^^ ; thence, by 
a line dividing the waters of Pocomoke Sound) north 47° 30' east five thousand 
two hundred and twenty yards, to a point in said sound marked " J>" on the 
accompanying map, in latitude 37° 56' 25'', longitude 75° 45' 26" ; thence fol- 
lowing the middle of the Pocomoke river by a line of irregular curves, as laid 
down on the accompanying map, until it intersects the westward protraction 
of the boundary line marked by Scarborough and Calvert May 28, 1668, at a 
point in the middle of the Pocomoke river and in latitude 37° 59' 37", longi- 
tude 75° 37' 04" ; thence, by the Scarborough and Calvert line, which runs 
5' 15' north of east, to the Atlantic ocean. v 

The latitudes, longitudes, courses, and distances here given have been meas- 
ured upon the Coast Chart No. 3'3 of the United States Survey, (sheet No. 3, 
Chesapeake Bay,) which is herewith filed as a part of this award and explana- 
tory thereof. The original charter-line is marked upon the said map and 
shaded in blue. The present line of boundary, as ascertained and determined, 
is also marked and shaded in red, while the yellow indicates the line referred 
to in the compact of 1785 between Smith's Point and Watkins' Point. ■ * 

In further explanation of this awai'd, the arbitrators deem it proper to add 
that — 

1. The measurements being taken and places fixed according to the Coast 
Survey, we have come as near- to perfect mathematical accuracy as in the nature 
of things is possible. But in case of any inaccuracy in the described course or 
length of a line or in the latitude or longitude of a place, the natural objects 
called for must govern. 

2. The middle thread of Pocomoke river is equidistant as nearly as may be 
between the two shores without considering arms, inlets, creeks, or affluents as 
parts of the river, but measuring the shore lines frorn headland to headland. 

3. The low-water mark on the Potomac, to which Virginia has a right in the 
soil, is to, be measured by the same rule, that is to say, from low-water mark at 
one headland to low-water mark at another, without following indentations, 
bays, creeks, inlets, or affluent rivers. 

4. Virginia is entitled not only to full dominion over the soil to low-water 
mark on the south shore of the Potomac, but has a right to such use of the 
river beyond the line of low-water mark as may be necessary to the full enjoy- 
ment of her riparian ownership, without impeding the navigation or otherwise 
interfering with the proper use of it by Maryland, agreeably to the compact of 
1785. 

In testimony whereof we have hereunto set our hands the day and year 
above written. 

J. S. BLACK, of Pennsylvania. 
CHAS. J. JENKINS, of Georgia. 
A. W. Graham, Secretary. 



22 House Doc. No. 6. 



OPINION OF JAMES B. BECK, OF KENTUCKY. 



I agree with my colleagues in the conclusion they have reached as to the 
rights of Maryland on the Potomac river. But I regret to be compelled to 
differ with them as to the location of the "Watkins' Point" of Lord Balti- 
more's charter, and consequently as to the true line of division between the 
states on the eastern shore of the Chesapeake Bay. I am satisfied, from all the 
facts and cii-cumstances before u?, that the promontory at the extreme western 
angle of the body of land, called by Calvert and Scarborough, Watkins' Point, 
in 1668, from which or " agreeable " to which they ran their divisional line east 
straight to the ocean, is the true Watkins' Point of the charter, and conse- 
quently the line of Calvert and Scarborough is the true line from the bay to 
the sea. 

My colleagues have decided that the true "Watkins' Point " is at Cedar 
Straits, which is a low, marshy cape or angle of the Chesapeake, on the north- 
western side of Pocomoke Bay, from which the charter line of Lord Baltimore 
ran 'east to the ocean, but that, owing to the action of the commissioners in 
1668, the present .true line now runs thence east to the middle of Pocomoke 
Bay ; thence, following the middle of the bay, to the mouth of Pocomoke 
river; thence up the middle of the river till it reaches the line of Calvert and 
Scarborough, four or five miles north of their Watkins' Point ; thence with 
that line east to the ocean. Being unable to see how this crooked line can be 
reconciled or made to agree, either with Lord Baltimore's charter or Calvert 
and Scarborough's settlement of the boundary in 1668, I am compelled to 
disagree with them, and propose to give my reasons for declining to sign the 
award. 

The length of time which has elapsed, and the loss of records which would 
have explained many of the transactions, render it difficult to speak with 
accuracy as to actions and events so remote. Much has to be inferred from 
the necessary or probable connection of isolated facts : whilst the impossibility 
of obtaining evidence outside of the documents laid before the commission by 
the distinguished counsel for the states to test the truth of the deductions and 
conclusions arrived at, makes an elaborate, and it may be somewhat tedious, 
statement of the case necessary to a proper understanding of it. 

I shall not attemj^t to give my views a judicial appearance, but rather set 
forth the reasons and arguments which have impelled me to the conclusion I 
have reached. 



House Doc. 'So. 6. 23 

By reference to the acts of the legislatures of Maryland and Virginia appoint- 
ing this commission, it will be seen that we are directed to determine the true 
line of boundary between the states ; and as the line across the Eastern Shore 
from the Chesapeake to the ocean is the opening line of Lord Baltimore's char- 
ter under which Maryland claims, it must first be settled, as the closing hne 
from the mouth of the Potomac to the initial point cannot be determmed un- 
til the beginning point is ascertained. That done, the closing line bemg " the 
shortest line" from the west side of the bay to the beginning, only reqmres 
the drawing of a straight line to the initial point to answer the call of the 
charter, in which the first or controlling line is thus described : " All that 
part of the Peninsula or Chersonese lying in parts of America between the 
ocean on the east and the Bay of Chesapeake on the west, divided from the 
residue thereof by a right line drawn from the promoniori/ or headland called 
Watkins' Point, situate upon the Bay aforesaid, near the river Wighco on the 
west, unto the main ocean on the east. " The location of the right line called 
for in the foregoing recital is the main point in dispute, especially the mathe- 
matical point which shall be determined to be the Watkins' Point, from which 
the surveyor should start the right line from the Chesapeake to the ocean. In 
reference to "Watkins' Point," several things must be observed: First. It is 
described in the opening line as a promontory or headland, and in the closing 
line thus : " Thence by the shortest line unto the said promontory or place 
called < Watkins' Point,'" In Webster's Unabridged Dictionary a "promon- 
tory" is thus described: "From pro, before, and mons, mountain. [Geog.) A 
high point of land or rock projecting into the sea beyond the line of the coast; 
a headland. It differs from a cape in denoting high land. A cape may be a 
similar projection of land, high or low. ' Like one who stands upon a promon- 
tory,'" {Shak.) Second. It is situated on Chesapeake Bay. Third. It was near 
(not upon or necessarily connected with) the river Wighco. Fourth. The line 
to be run from Watkins' Point on Chesapeake Bay was to be a '' righV or 
straight line "from that initial point to the ocean on the east." 

When the charter for Maryland was granted by Charles I to Cecelius, Lord 
Baltimore, in 1632, there was no map of the country in existence except that 
made by Captain John Smith to accompany the history of his explorations and 
adventures in America, and no means existed of determining the location and 
character of the place called by him "Watkins' Point," except the description 
given of it in his history. The name "Watkins' Point" is written on the land 
in Smith's map in such a manner that no person can say, by looking at it with 
the certainty that ought to be required in settling a question of boundary 
between colonies or states, what spot is intended to be indicated as the mathe- 
matical point from which a line of survey should be run. The history which 
the map was drawn to illustrate makes it conclusive that the marshy angle at 
Cedar Straits could not be the " Watkins' Point" named by Captain Smith, the 
only description of which is given by him in volume 1, page 183, as follows: 

" Watkins', Read's, and Momford's poynts are on each side Limbo, Ward, 
Cantrell, and Sicklemore's, betwixt Patawomack and Pamaunkee, after the 
names of the discoverers. In all these places and the furtherest we came up 
the rivers we cut in trees so many crosses as we would, and in many places 



24 House Doc. Xo. 6. 

made holes in trees, wherein we writ notes, and in some places crosses of 
brasse, to signifie to any, Englishmen had been there." 

It is agreed that Smith gave the name of "Limbo" to the straits known as 
"Hooper's Straits," about twenty miles north of Cedar Straits; and the proof 
is conclusive that the angle at Cedar Straits is, and always was, a low, marshy 
point, on which no trees ever grow and which has none of the elements of a 
promontory. The southernmost angle of it lies south of, and is hidden from 
the view of navigators, on the Chesapeake Bay, by the northern pojjit of Fox 
Island, which is, and always has been, a part of Accomac county, in Virginia. 
Fox Island lies near to and west-southwest of the southern point of the main 
shore at Cedar Straits, and was 'granted by Virginia in 1678, Watts' Island, 
south of it, having been granted in 1673. They were both islands then; and 
there being no evidence to show that they were not both islands in 1608 and 
1632, the presumption is that they were. A straight line cannot now be drawn, 
and I assume never could have been drawn, from the southern extremity of 
the main shore at Cedar Straits, either to Cinquack or Smith's Point, on the 
western side of the bay, without running across Fox Island. My colleagues 
have been compelled to run through it, as the line on their map shows, in order 
to reach their so-called Watkins' Point. It would be hard to explain how 
Maryland became entitled to it. It is not contended that any land has been 
made at this point since the charter was granted; and whatever washing away 
has taken place only renders the fact less certain now than it was two centuries 
ago. These facts will appear by an examination of any map of the United 
States Coast Survey, and such examination will show that the southern point of 
the mainland at Cedar Straits never was in any sense a promontory or headland 
on the Chesapeake Bay. 

The Maryland Commissioners in their stc^tement to this commission, pages 
46 and 47, give such a description of the character of the coast on each side of 
Cedar Straits as show that the point now determined to be Watkins' Point by 
my colleagues was not believed by them to be the Watkins' Poirt of the charter. 

If it was not so originally, no changes in the character of the coast since can 
make it so now. John Smith named it long before any charter was thought of. 

The commissioners say : 

"The mouth of the Wichcocomoco or Pocomoke was then as it is now south 
of what is known as Watts' Island, thence going north you pass Tangier Island, 
thenoe ( including Fishbone and Ilerne Islands) extending as far north as Fox 
Island is now. From the mouth of the Pocomoke to Point Ployer at that 
time (lOOS) the coast was low broken isles of marsh, and from Cedar Straits to 
Jane's Island such is noiv the character of the coast. Tliere may then have been, 
(in 1608,) and for thirty years thereafter, an unbroken neck of land, as we have 
supposed, flanked on the east and west by low broken islands of niArsh, which 
have long since been waslied away, and some of them have been shbmerged 
within the memory of living witnesses. * * * The isles they called 
•Limbo were evidently those now know as Smith's Islamls and Holland Islands. 
And the only point of high land upon the main from Russels' (Tangier) Isles 
to Nanticoke river was that since known as Jane's Island, which must have 
been the Point Ployer of Smith's History." 

The point at Cedar Straits never was called " Watkins' Point " in any patent 
or conveyance : it remained vacant land till 1702, when it was granted by Lord 



House Doc. :^o. 6. 25 

Baltimore by the name of " Plane's Harbox' " to Isaac and Nathan Horse3\ 
The grant contained 407 acres ; its bounds calls for " Cedar Straits, " but no- 
where suggests that " Watkins' Point" is in the grant. In 1748 Isaac Horsey 
conveyed it, and again gives its bounds with " Cedar Straits " among the calls ; 
no mention being made of " Watkins' Point. " No line ever was run from 
Cedar Straits east to the ocean. The majority of the board do not now propose 
to run a line from their " Watkins' Point" east according to the calls of Loi'd 
Baltimore's charter, which they admit calls for a straight line from the Chesa- 
peake Bay to the Atlantic. They are obliged to meander along the Pocomoke 
Bay and river more than four miles north of an east line from Cedar Straits to 
the line established in 1668 by Calvert and Scarburg, and follow that line from 
the Pocomoke River east to the ocean, and to admit, Jirst, that their line is not the 
true charter line, and second, to claim thai the Calvert and Scarburg line of 1668 is not 
the true charter line, though they adopt it in order to sustain their theory that the 
point at Cedar Straits is the "Watkins' Point" of Lord Baltimore's charter. 
I assert that no man could take Smith's History and map, with the description 
of the country for fifteen miles north and south of Cedar Straits, as given in 
tlie Maryland statement of this case, and locate the "Watkins' Point" of 
Lord Baltimore's charter at Cedar Straits, even if no line had been run by Cal- 
vert and Scarburg; and when in^ddition to this it is shown that, more than 
two hundred years ago, commissioners appointed by the highest authority in 
Maryland and Virginia did in fact run a divisional line between the colonies 
straight from the Chesapeake Bay to the ocean on what" was then decided and 
settled to be the charter line, which strikes the Chesapeake about four miles 
north of Cedar Strait at a point which has all the requirements of the " Wat- 
kins' Point" of Smith's History and map, it seems to me that the assumption 
that Cedar Straits is the true " Watkins' Point " cannot be maintained, con- 
ceding the possession by Maryland of the point of land south of the true 
charter line, which is explained on grounds easily understood, without doing 
violence to the well-settled facts in the case. In order to present my views 
clearly I will be compelled to give a somewhat detailed statement of the causes 
which led to the Calvert and Scarburg survey and agreement ; an explanation 
of its true meaning, and the protraction of its line west over Smith's Island, 
and east to the sea. 

The true divisional line between Maryland and Virginia, f»om the Chesapeake 
Bay to the ocean, became the subject of serious controversy between the colo- 
nies at a verjr early period, yet no line was established and no settlement of the 
controversy had until 1668. From 1632, when the charter for Maryland was 
granted by Charles I to Cecilius, Lord Baltimore, up to the settlement of the 
line by Phillip Calvert, the chancellor of Maryland, and Edmond Scarburg, 
the surveyor-general of Virginia, 1C68, all sorts of extravagant claims were as- 
serted on both sides — Lord Baltimore claiming down to Onancock, which is 
many miles south of what he had assumed to be his charter line in the map 
published by him in 1635, to accompany his " Relation of Maryland ;" and Vir- 
ginia, by the act of her gi'and assembly of September 10, 1663, claiming up to 
Nanticoke or Nanokin, many miles north of the "River Wighco," on Smith's 
map. I rei:)eat that there was no map of that country in existence when Lord 

4 



26 House Doc. Xo. 6. 

Baltimore's charter was granted, except Captain John Smith's, and his history 
furnished the only information which we have any right to assume either the king 
or Lord Baltimore had when the grant was made; neither of them ever were 
in America. The map accompanying Lord Baltimore's Eelation of Maryland 
in 1635, was, of course, his advertisement of his claim, made up and published 
in London, to induce people to emigrate there, and certainly included all he 
thought he could possibly embrace within the limits of his charter. Until a 
line was run from the ocean to Watkins' Point, or from "Watkins' Point to the 
ocean, which is the same thing, it was perhaps natural that Lord Baltimore 
should seek to extend his limits a^. far south as possible, as he obviously did on 
his map, by changing the whole character and shape of the land at Watkins' 
Point, as laid down on Smith's map, of which he professed his was a copy, ex- 
tending the southern point far into the bay beyond what Smith had done, and 
from that southern point, so made arbitrarily, he extended his " charter line," 
by a dotted line straight east to the ocean. If he had been entirely impartial 
between himself and the king, he would have made a true copy of that part of 
Smith's map, at least, and if he claimed from the southern angle of the point, 
instead of the westermost, would have dotted his southern line thence east to 
the sea, as Smith's map located it, instead of creating an artificial point or tongue 
of land, as he did, so as to claim across the whole eastern shore all the land for 
many miles south of what a line projected from the southern point on Smith's 
map would have given him. Tlie king, after closing the grant to him, had 
taken the precaution to say, in the charter, that it was laid off " so that the 
whole tract of land divided by the line aforesaid, between the main ocean and 
Watkins' Point, unto tlie promontory called Cape Cliarles, may entirely remain 
for ever excepted to us, our heirs and successors forever." It must therefore 
have been obvious to Lord Baltimore, that he was attempting to take from the 
king a large amount of property not granted to him, when he so drew his map 
as to extend his southern boundary from the Chesaiaeake east to the ocean, from 
a point far south of that laid down on Smith's map, from which he professed to 
have copied his own. 

Again, and I am only showing now that each side, prior to the running of the 
divisional line in 1668, by Calvert and Scarburg, as an adjustment of all dis^jutes 
from the Chesapeake Bay to the ocean, set up extravagant and unfounded 
claims. Lord Baltimore obtained from Sir John Harvey, (whose history is too 
well known to require further comment than that he was hated and despised 
by the people, whom he as cordially disliked,) after the banishment and return 
of that governor, a jiroclamation, dated October 4, 1638, forbidding all citizens 
of Virginia from trading "with the Indians or savages inhabiting within the 
said province of Maryland, viz : northward from the river Wiconowe, commonly 
called by the name of Onancock, on the eastern side of the grand bay of Ches- 
apeake," * * "without license first obtained for their so doing from the 
Lord Baltimore, or his substitute,'' <fec. 

Onancock, as Sir John Ilarvey, and certainly as Lord Baltimore knew, being 
from ten to fifteen miles south of what Maryland now claims to be the " Wat- 
kins' Point" of the charter, and from eight to ten miles south of the dotted 
line which Lord Baltimore had drawn east to the ocean from the " Watkins' 



House Doc. Xo. 6. 27 

Point," laid down by him on tlie map of 1635, accompanying his "Relation of 
Maryland." Several streams of considerable magnitude, such as Chesconessex 
and Hunter's creek, were between Onancock and the Wighco (or Pocomoke,) 
on the Eastern Shore, so that there could be no doubt that Onancock was far 
south of any possible charter line ; yet, with that knowledge. Lord Baltimore, 
in a letter of instructions to his governor and council, dated October 23, 1656, 
among other things, ordered, "That they take special care that no encroach- 
ments be made by any, upon any part of his lordship's said provinces ; for the 
better prevention whereof, his lordship requires his said lieutenant and council 
to cause the bounds thereof to be kept in memory and notoriously Jcnoivn, especially the 
bounds between Maryland and Virginia, on that part of the country known there by the 
name of the Eastern Shore ^ * * * and his lordship hath also, for their direc- 
tion therein, sent herewith a copy of a proclamation published heretofore by 
the then governor and council of Virginia, for prohibiting any of Virginia to 
trade with the Indians in Maryland without his lordship's license, which pro- 
clamation bore date 4th October, 1638, and therein are described the hounds leiiveen 
Maryland and Virginia:' This extreme claim of Lord Raltimore doubtless in- 
duced the Maryland commissioners, in their statement in 1872, to say that, "It 
may be fairly considered evidence that ' Watkins' Point' at that time extended 
so far south as to be west or nearly west of Onancock river, so that an east line 
from it to the ocean would pass along or near that river. * * * And the 
tradition is so fully proved that the mainland originally extended in one un- 
broken point to Watts' Island, the southern end of which at that time was 
probably so nearly west of Onancock river as to confirm the implication that 
' Watkins' Point' was at the southern end of what has since become known as 
Watts' Island." 

So that neither Lord Baltimore in 1656, ner the Maryland Commissioners in 
1872, claimed that the marshy point, which is the southern point of Somerset 
county, on the bay, is the true " AVatkins' Point" of the charter to Lord Balti- 
more. Surely Watkins' Point could not be at one place at one time and at a 
different place at another. Whatever was originally the true charter point is 
so now. Our duty is to find it. All the best informed parties assumed that it 
was not at Cedar straits. 

I agree with them, that it is not. As already stated, that point has none of the 
elements of a promontory or headland, and was not regarded by Calvert and Scar- 
burg as answering Captain John Smith's description of " Watkins' Point." 
But before considering that, I propose to show that Virginia, prior to 1668, was 
as extreme and more dictatorial than Lord Baltimore in the assertion of her 
claim to a line of division between herself and Maryland many miles north of 
the line, finally agreed on by Calvert and Scarburg. It is unnecessary to refer 
to her conduct prior to 1663, as her action then illustrates fully what I mean. 
On the 10th day of September, 1663, her grand assembly passed an act " Com- 
manding in his majesties name all the inhabitants of the Eastern Shore of Va., 
from 'Watkins' Point,' Southward, to render obedience to his majestie's Gov- 
ernment of Va., and make payment of his majesties rents and all public dues 
to his majesties colony of Va. And whereas, it has been controverted by some 
ignorant or ill-disposed persons, where ' Watkins' Point,' the Lord Baltimore 



28 . House Doc. l^o. 6. 

southernmost bounds on the Eastern Shore is situate. This Grand Assembly by 
the care and special inquiry of five able selected Surveyors and two Burgesses, 
and the due examination thereof, conclude the same place of Watkins' Point 
to be the North side of Wicocommico river, on the Eastern Shore, and near 
unto and on the South side of the Straight Lymbo, opposite the Patuxent river, 
which place, according to Captain John Smith, and discoverers with him in the 
year 1608, was so named, being, the Lord Baltimore's bounds on the Eastern 
Shore, within which bounds his majesties siJbjects that are now seated, are 
hereby commanded to yield due obedience at their perils." 

Col. Edmund Scarburg and two others were appointed to confer with the 
Maryland authorities, and in the meantime "all inhabitants on the .Eastern 
Shore as aforesaid, are required in his majesties name to conform due obedience 
to this act of assembly." 

Acting or assuming to act under the orders so given by the grand assembly 
of Virginia, Colonel Scarburg, in October, 1663, taking with him about forty 
horsemen "for pomp and safety,^'' went to Annamesseks and Manoaken, and 
proceeded in the moSt arbitrary manner to take possession of the country 
up to Manoakin, and to require all the inhabitants to "subscribe obedience" 
to his majesty according to the Virginia act of assembly ; setting the "broad 
arrow,^' the mark of confiscation, on the doors of all who refused or asserted 
any right in Lord Baltimore to any jurisdiction south of the place claimed by 
Virginia in this act, to bfe Loi'd Baltimore's southei-n boundary. 

In his report to the Governor and Council of Virginia of what he had done, 
he gives his conversations with some of Lord Baltimore's officers and staunchest 
adherents, and adds : "Some of them also discussed of the Lord Lieutenant of 
Maryland's claim to Manoakin and all the other places to Onancock, to which 
it was answered that whilst the erroneous Proclamation was uncontroled that 
declares Onancock to be Maryland's Southern Bounds, it might be so received. 
But since occasion made the Government of Virginia not only reverse that 
proclamation, but also by the present act' of Assembly, the certain bounds of 
the Lord Baltimore's patent was declared, &c., that if the Lord Lieut, had 
aught to say he was referred by the act to persons and place; therefore they 
need not trouble themselves therein, for the question appertained to higher 
powers and above private men's controverting." In order to sustain the claim 
of Virginia, the Court of Accomac County, seven Justices of the Peace present, 
on the 10th day of November, 1663, after a long preamble setting forth the 
disobedience of certain rebellious Quakers and other factious people about 
Manoakin, who refused to conform to the act of Assembly of Virginia, ordered 
certain officers to call together His Majesty's good subjects from Manoakin to 
Pocomoke river; to arm themselves, and if necessary, protect the people, and 
suppress any disturbances that these Quakers or others may seek to raise 
because of said act. 

On the 19th of July, 1664, Edmund Scarborough and seven other apparently 
respectable gentlemen appeared before the court of Accomac, and made oath 
that the Pocomoke river had been known by that name "time out of mind," 
''being a river on the eastern shore of the Chesapeake Bay in Virginia, lying 
to the southward of a small spiral point on the south side of Anneraessecks, and 



House Doc. No. 6. 29 

that point is to the southward of the place described in Captain John Smith's 
map for Watkins' Point, so far as a man can seen in a clear day." It is evident 
that the "small spiral point" referred to in that affidavit is the "Watkins' 
Point" of the Calvert and Scarborough line, the "extreme western angle" of 
the bodj^ of land on which they afterwards determined the initial point of the 
opening line of the charter on the Chesapeake to be, the point Dr. Russell says 
they called Point Ployer in all probability, but-io which, in my opinion, Smith 
in his history and map gives the name of Watkins' Point, there being no "Point 
Ployer" anywhere laid down by him; and it was from his history and map 
that both Virginia and Maryland were asserting their rights. That spiral or 
triangular point was about fifteen miles south of the first high land on the 
main°shore north of it, which was the point at Nanticoke, nearly opposite Pa- 
tuxent river, which Virginia was asserting with such pertinacity to be the Wat- 
kins' Point of Lord Baltimore's charter and the northern limits of Accomac 
county, being about as " far as a man can see in a clear day. " It was the only 
point on the coast north of Onancock or south of Nanticoke, which gave Vir- 
ginia any trouble in maintaining her extreme claim. Lord Baltimore's claim 
to Onancock was too extreme to be dangerous ; but she had to fortify herself 
asainst Maryland's withdrawal from Onancock and asserting her right east from 
the point which the makers of the affidavit spoke of as " a small spiral point. " 
Doubtless the affidavit was made to fortify Virginia in the negotiation then in 
progress against Maryland, demanding that point as the true Watkins' Point 
of her charter ; for it will be observed that it was made after Governor Cal- 
vert's visit to Sir William Berkley and after Phillip Calvert was empowered to 
treat with the governor and council of Virginia ; they had no apprehension 
that the marshy angle at Cedar Strait would ever give them any trouble. 

Enough has thus been shown to exhibit the extreme claims of each, and the 
danger to be apprehended unless the question was settled in some amicable 
man'ner. Lord Baltimore protested at once against the arbitrary conduct of 
Scarborough, and demanded " Justice against the said Edmund Scarburgh for 
entering into his province, in a hostile manner, in October last, and by blows 
and imprisonment outraging the inhabitants of Manoakin and Annamessex. " 
Governor Calvert, in the early part of the year 1664, visited Governor Berk- 
ley in person, as shown by his proclamation dated June 3d, 1664, in which, 
after speaking of the outrages committed by Scarborough on his people, he 
says, "And whereupon remonstrance of this undue proceeding to the Hon. 
Sir William Berkley, by myself in person, he did not only disclaim any order from 
him to the said Scarburg alone, or before notice given and debate had, touch- 
ing the point of difference, to proceed by force, as he did ; but was pleased, by 
his order of the 28th of March last, to order the said Scarburg, with one or 
both surveyors, &c., * * to give a meeting to such commissioners as should 
by me be appointed, " &c. After stating the failure of these commissioners 
to meet, the governor proceeds : " And to show how we are not to be tired 
out of our desires of fair correspondence with Hon. Gov. & Council of Va., I 
have constituted, ordained, appointed, and empowered Philip Calvert, Esq., 
Deputy lieutenant and chancellor of this province, to repair to the Hon. Sir 
Wm. Berkley, Gov. of Va., and the council there, and after delivering of a du- 



30 House Doc. Xo. 6. 

plicate of these presents, and to treat and determine the said differences con- 
cerning * Watkins' Point. ' * * * Whereof I desire that the said 
Philip Calvert may be credited and believed, promising to ratify and confirm 
whatsoever shall be done by him, according to this my commission, as if it 
were done by myself. " 

It thus appears that the Governor of Maryland had a personal interview be 
fore March 28th, 1664, with the Governor of Virginia, relative to the settle- 
ment of the true boundary line between the two provinces on the eastern 
shore, between the Chesapeake Bay and the ocean, at which time it must be 
assumed that the claims of Lord Baltimore and those of Virginia were fully 
discussed. Smith's book and map ; Lord Baltimore's relation and map ; Sir 
John Hervey's proclamation in 1638 ; Lord Baltimore's claim to Onancock iu 
1656, based upon it as well as the act of the assembly of Virginia September 
10th, 1663, and the facts upon which that action was based, were all before 
them. The result was, as Governor Calvert stated in his proclamatiou of June 
3d, 1664, that Sir William Berkley " was pleased further, by his order of the 
28th of March last, to order the said Scarburg, with one or both the surveyors, 
<fec., * * to give a meeting to such commissioners as should by me be ap- 
pointed at Manoakin 10th of May last. " That commission having failed, 
Philip Calvert was ordered by the governor to repair to Virginia in' person, 
and there treat with the governor and council of Virginia, and determine the 
"differences concerning Watkins' Point." We must assume that he went, 
and had a full discussion of all the questions at issue with the governor and 
council of Virginia. 

In the absence of records, we cannot say how far he was successful, but the 
inference is strong that before October, 1667, he had made an agreement with 
them substantially similar to that formally signed by himself and Edmund Scar- 
borough on the 25th of June, 1668. A careful reading of that agreement (leav- 
ing out for the present the grant from Virginia for 1,000 acres on Smith's Island 
in October, 1667,) seems to warrant the assumption that he had, and that Scar- 
borough was sent by the governor and council to perfect it and run the bound- 
ary line, as it recites, "by his majesty's commission," it was his right and duty, 
by the advice and order of governor and council, to do. I will speak of that 
hereafter. All the proceedings had, and all the acts done, prior to and includ- 
ing the appointment of Philip Calvert in 1664, were based ujion the extreme 
claims of the parties to the controversy. Neither had pretended to assert where 
the true mathematical point, the Watkins^ Point of the charter, on which the sur- 
veyor should plant his staff or compass and start the divisional line from the 
Chesapeake Bay to the ocean on the east, was. Until that exact point was set- 
tled and agi'eed upon, no line could be run. They had confined themselves to 
general claims reaching to the neighborhood of certain i^laces. No line was 
ever traced on any map of John Smith, the only one in existence when the char- 
ter was granted. He had described Watkins' Point in his history only in the 
manner I have stated. It will be observed also that Smith's map lays down the 
Pocomoke Bay as running almost due west from the mouth of the river, with a 
long, narrow tongue of land on the south side of it, extending almost to the 
islands in the Chesapeake, dividing it from a large bay filled with islands on 



House Doe. No. 6. 31 

the south side of, but disconnected with it. However erroneous that map may- 
be, and we now know it is very incorrect in regard to both the river and bay, 
their general direction being ahnost south, instead of west, as he lays them down, 
still it was the only guide which either the king or Lord Baltimore had when 
the charter was drawn, and it fixes the "Watkins' Point" of the charter very 
near the point agreed on by Calvert and Scarburg, while it dissipates the claim 
of Lord Baltimore to run down to Onancock, shews the incorrectness of his 
map, published in 1635, with his relation, and disproves the claim of Virginia, 
as asserted in her act of 1663, to the line she sought to maintain twenty miles 
above, at Nanticoke or Manoakin. The map was of course before Philip Cal- 
vert, and the governor and council of Virginia, while he was with them " to 
treat and determine the said differences concerning Watkins' Point,'' and when it was 
fairly looked at by men negotiating in a just and amicable spirit, it caused all 
the extreme pretensions on both sides to be abandoned. That furnishes the 
only rational interpretation of the language used in the preamble or first sec- 
tion of the final agreement of Calvert and Scarburg in 1668 ; indeed of the whole 
agreement as signed by them. It was written by and for men familiar with all 
the antecedent negotiations, who knew just what point had been reached when 
they met, and were consummating agreements intended to give permanent 
peace and security to both colonies along the whole disputed line, from the 
Chesapeake Bay to the ocean. That agreement is as follows: 

<' Whereas his Royal Majesties Commission to the Surveyor Genl. of Virginia, 
commands setting out the bounds of Virginia, with reference to his Majesty's 
Hon'ble Governor and Council of Virginia, from time to time to give advice 
and order, for directing the said Surveyor General to do his duty appertaining 
to his office. In order thereunto his Majesty's Hon'ble Governor and Council 
have by letter moved the Hon'ble the Lord Baltimore's Lieut. Genl. of Mary- 
land to appoint some fitting person to meet upon the place called Watkins 
Point with the Surveyor Genl. of Virginia, and thence to run the division Hne 
to the Ocean Sea, &c. 

"The Hon'ble Philip Calvert, Esq., Chancellor of Maryland, being fully nn- 
powered by the Hon'ble Lieut. Genl. of Maryland, and.Edmond Scarborough, 
his Majesty's Surveyor Genl. of Va., after a full and perfect view taken of the 
point of land made by the north side of Pocomoke Bay and the south side of 
Annamessex Bay, have and do conclude the same to be Watkins Pt., from which 
said point, so called, we have run an east line, agreeable with the extremest 
part of the westernmost angle of said Watkins Point over Pocomoke Eiver, to 
the land near Robt. Holston's, and there have marked certain trees, which are 
so continued by an east line, running over Swansecute's Creek, into the marsh 
of the seaside, with apparent marks and boundaries, which by our mutual agree- 
ment, according to the qualifications aforesaid, are to be received as the bounds 
of Virginia and Maryland on the Eastern Shore of Chesapeake Bay. 

" In confirmation of which concurrence we have set our hands and seals this 
25th day of June, 1668. 

(Signed) Philip Calvert. [Seal.] 

Edmond Scarborough. [Seal.]" 

Viewed in the light of antecedent negotiations, I think the meaning of the 
foregoing agreement is that Philip Calvert and the governor and council of 
Virginia, after a full and free conference extending over several years, during 
which serious encroachments had been and still continued to be made by each 
of the colonies upon the other, determined to abandon their extreme preten- 
sions, Virginia no longer insisting upon carrying out the provisions of her act 



32 House Doc. Xo. 6. 

of assembly by claiming to run the divisional line from Manokiii to the ocean, 
and Lord Baltimore abandoning all his claims to the line east from Onancock ; 
and as John Smith's map, from the names and descriptions on which the King 
granted the charter to Lord Baltimore, has " "Watkins Point" laid down on the 
l')oint of land formed by the north side of Pocomoke bay and the south side of 
Annamessex bay, the governor and council of Virginia, hy letter, moved the 
governor of Maryland to appoint some fitting person to meet upon the place 
called " Watkins Point " on Smith's map, with the surveyor-general of Virginia, 
whose duty it was, " by his commission from the King," to lay out the bounds 
of Virginia under the direction, advice, and order of the governor and council, 
" and thence to run the line of division to the ocean sea." Philip Calvert was, in ac- 
cordance with the request contained in said " letter," sent by the governor of 
Maryland to meet Scarburg, having been long before fully empowered to settle 
the disputed question. They met on said land, took a full and perfect view of 
all of it, agreed that neither Manokin nor Onancock was the place on which 
the " Watkins Point " of the charter was situated, but that it was on the point 
of land formed by the north side of the Pocomoke bay and the southern side 
of Annamessex bay, and that the extremest part of the westernmost angle of 
it was the true mathematical point from which a line should be run by survey 
to the ocean on the east, and they ran it accordingly. It may be suggested that 
the fact that they viewed the whole point and decided the jjoint of departure 
afterwards, shows that they alone determined the whole question. The answer 
is that the respective governments could only give general directions from a 
distance. Much of detail had necessarily to be trusted to the judgment and 
discretion of their agents, as was doubtless done. 

Their line crossed the Pocomoke river to the land near Robert Holston's, and 
thence to the marsh by the seaside. They marked the line east of the Poco- 
moke for reasons made obvious by another agreement entered into between 
them, or rather signed by them on the same day, for the protection of all 
grantees from Virginia for lands north of the boundary established by them, 
so that Lord Baltimore and persons holding lands granted by Virginia north of 
the line should have no difficulty in causing re-surveys to be made and jDatents 
from Lord Baltimore issued with that marked line as the southern boundary of 
the grants. Without a line so marked it would have been impossible either for 
Lord Baltimore or the claimants to have executed that agreement for the pro- 
tection of Virginia patentees ; but as Virginia had made no grants west of the 
Pocomoke nor on the seven miles east of the Swansecute marsh, no marks 
were made. Maryland's grantees south of the line were not protected by the 
agreement anywhere. A marked line was not immediately necessary on their 
account, the line being a "right" or straight line from the Chesapeake bay to 
the ocean, the portion marked because of the urgent necessity above stated 
furnished not only conclusive evidence of where the line was all the way, but 
made it easy for the plainest surveyor with the simplest instruments to protract 
it east or west, wherever it was necessary or desirable to do so for any purpose. 
The line thus run and partially marked is, the commissioners say, "to be re- 
ceived as the bounds of Yiryinia and Maryland on the eastern shore of the Chesapeake 
Bay. " Not from the Pocomoke River to theeea, leaving the line west of that 



• House Doc. Xo. 6. 33 

river for fifteen miles either unsettled or to follow the meanders of the river 
and bay to Cedar Strait, four miles south of the line they had run, but they did 
what they were ordered to do, and what they say they did. They settled the 
bounds of Virginia and Maryland by a straight line, as the charter required, 
from the Chesapeake Bay to the ocean. It seems to me that no other con- 
struction can be given to the agreement. They met to run the line between 
the colonies according to the charter granted to Lord Baltimore and the whole 
line between the Chesapeake Bay and the sea. They say in their agreement 
that they met for that purpose, and that they did so run it, and that their acts 
are to be so received as covering the whole line. Nowhere in all the corres- 
pondence, records, or contemporaneous history is any compromise line sug- 
gested. No map-maker, until very recently, ever drew any other than a 
straight line -as the divisional line between the colonies on the eastern side of 
the Chesapeake Bay, and all agreed that the Scarburg and Calvert line, as 
marked from the Pocomoke to the marsh by the sea, was a part of that straight 
line ; and however much the map-makers might be mistaken as to its true loca- 
tion, its existence straight from the bay to the ocean was universally recognized 
and laid down by them. We know where it is beyond question ; and if a thousand 
map-makers had laid it down elsewhere, the true location on the land remains 
and settles all questions concerning it. 

I said there is no evidence anywhere, either that any compromise line was 
run or that any other than the true line of Lord Baltimore's charter was ever 
suggested. The agreement says they met to run that line, and that they ran 
it. Philip Calvert's commission in 1664 was "to treat and determine the said 
difference concerning Watkins' Point. 

In the letter ordered by the council of Maryland in 1662-'63 to Sir William 
Berkley they say : "And that on their part they would appoint a time when 
we on our part shall attend on them to determine that place which shall be ac- 
counted ' Watkins' Point, ' according to his lordship's patent for Maryland. " 
Virginia never, so far as appears, asked for or sought to establish any other 
line than the charter line as she understood it, when, by her act of assembly, 
in 1663, she claimed that Accomac county extended to Manokin ; when the 
court of that county ordered out the militia ; when seven of the citizens made 
the affidavit referred to. All was based upon and set up to sustain and enforce 
the charter line. It is safe to assert that there is no evidence even tending to 
show that any other was ever attempted to be established, or that any other 
than a " right" or straight line from the bay to the ocean was ever thought of. 
There are intimations all through the proceedings that Scarburg, perhaps for 
personal reasons, overreached Philip Calvert, and had the line run north of 
the true line of the charter. There is absolutely nothing to sustain any such 
charges or suggestions against Scarburg. It is true he attempted to enforce the 
act of the Virginia Assembly of 1663 in a very arbitrary way, but it was a very 
arbitrary act which he was ordered to enforce. Sir William Berkley disap- 
proved his conduct; but in March, 1664, after Governor Calvert had visited 
Virginia, Scarburg was again appointed at the head of the commission to settle 
the boundary after the accusation and demands for justice against him made 
in Governor Calvert's proclamation of June, 1664. When Philip Calvert was 

5 



34 House Doc. Xo. 6. 

appointed to treat with the governor and council of Virginia and settle the dis- 
puted boundary, Scarburg was again in 1668 appointed the agent of Virginia 
to close the controversy. He was certainly a man of sufficiently high charac- 
ter to be trusted by Virginia and the king with most important commissions ; 
and I know of nothing relative to the question before us which warrants us to 
regard anj'^ act of his with suspicion or to impute to him any improper motives. 
It is urged that he had obtained large grants of land from Virginia north of 
the true charter line, and that he was therefore greatly intei'ested in pushing 
the line east of the Pocomoke as far north as possible. I have failed to com- 
prehend the force of the suggestion, with Governor Calvert's agreement of 
June 11, 1668, and Philip Calvert's covenant of June 25, 1668^ protecting in 
every way all surveys, grants, and entries made bj' or under Virginia north of 
the line. It might as well have been located at Onancock, so far as his landed 
interests were concerned, as where it was. It is too late now to impugn the 
motives of Scarborough. He must stand on the same footing as Philip Calvert, 
unless some wrongful act is shown, and none is even pretended. If fraud is 
charged, and a charter line established over two hundred years ago is to be set 
aside because of it, some fact should be shown. Finding fault with Scarburg 
now will hardly be satisfactory. I can see, however, why he delayed signing 
the final agreement as to the boundary line until Lord Baltimore had ordered 
and Governor Calvert had executed the covenant for the protection of the 
grantees of Virginia north of the line. 

It is apparent from the proof that, from 1663 to 166S, both sides were active 
in strengthening their respective claims. Lord Baltimore was urging his offi- 
cers to encourage settlei's on the debatable ground. In 1666 he organized 
Sotnerset county, and laid oitt its bounds thus: "All that tract of land within 
our province of Maryland bounded on the south with a line from Walkuis'' 
Point, being the north point of tlie baj' into which the river Wighco (formerly 
Wighcocomico and afterwards Pocomoke and now Wighcocomico again) doth 
fall exclusively to the ocean on the east," taking, of course, all the territory 
east of the Pocomoke for over four miles south of the Scarborough and Calvert 
line, and in every other waj'^ sought to sustain his claim south to that point. 
He had, in 1666, I assume, abandoned his claim to Onancock. He repudiated 
the theory advanced in the Maryland statement, that the Watkins' Point of 
his charter was at Watts' Island, or at any point south of the southern angle 
of the county he laid out., Virginia, on the other hand, was vigorously pushing 
her claims northward on the eastern side of the Pocomoke River, where the 
lands were far more valuable and of course more eagerly sought after. She had 
not crossed into the marshes west of the Pocomoke, but before 1667 had granted 
north of the Calvert and Scarborough line about 33,000 acres, or over fifty 
square miles of territory. If she made any grants north of the line of 1668 
after July, 1667, I have failed to observe them. She was, under her act of 
Assembly of 1663, insisting on her right to assert her jurisdiction over all the 
country from the Chesapeake Bay to the ocean, south of a line nearly opposite 
the Patuxent River, some fifteen or twenty miles north of the line of Calvert 
and Scarborough. Collisions between citizens, officials, and the resi-)ective 
governments were imminent until the Calvert and Scarborough settlement and 



House Doc. No. 6. 35 

line adjusted everything according to the legal rights of the parties. McMahon, 
in his history of Maryland, vol. 1, pages 20. and 21, sets forth these transactions 
with great clearness. He says: 

" These acts of unprovoked hostility on the part of Scarborough were at once 
disclaimed by Sir AVilliam Berkley as wholly unauthorized, and as the best 
mode of obviating all fu.ture difficulties, the governor of Maryland set on foot 
a negotiation with Berkley for the purpose of effecting a final settlement of the 
boundary line between the respective possessions of the two governments on 
the eastern side of the bay. The entreaties and remonstrances of the former 
were at last crowned with success, and commissioners were at last appointed,. 
viz: Philip Calvert on the part of Maryland, and on the part of Virginia its 
surveyor-general, Edmond Scarborough, who were empowered to determine the 
location of Watkins'' Point, and to mark the boundary line betiveen the two colonies running 
thence to the ocean. By them this duty ,was fully discharged on the 25th June, 
1668, and in consummation of it certain articles of agreement were drawn up 
and signed by each of them on behalf of their respective governments, in one 
of which they desi»nated the point of land made by the north side of Poco- 
moke Bay and the south side of Annamessex Bay as Watkins' Point, and the 
divisional line between the two colonies to be 'an east line running with the 
extremest part of the westernmost angle of said Watkins' Point over Poco- 
moke River, and thence over Svvansecute Creek into the marsh by the seaside, 
with apparent marks and boundaries. ' _ 

" Thus ceased all the existing sources of controversy with the government 
of Virginia about the validity or true location of the charter of Maryland, " 

McMahon evidently had not a shadow of doubt that the Calvert and Scar- 
borough line ran straight from the Chesapeake Bay to the sea precisely where 
I contend it does. 

In a recent work by Edward D. Noell, entitled " Terra Marie, or Tlireads of 
Maryland Colonial History," on page 151, the writer, after speaking of Scar- 
borough's raid, says, *' These acts were disclaimed by Sir William Berkley. 
And P-hilip Calvert on the part of Maryland, and Scarborough as surveyor- 
general of Virginia, on the 25th day of July, 1668, agreed upon a boundary, an 
east line from the extreme part of the most western angle of Watkins' Point, 
over Pocomoke River, thence over Swansecute Creek into the marsh on the 
eastern shore. " 

In a note on the same page he says : " Scarborough, from the year 1630, had 
been prominent as a representative of Accomac county, Virginia. His daugh- 
ter married Custis, formerly an inn-keeper in Rotterdam, and the ancestor of 
the first husband of Mrs. George Washington. " 

Other historians might be quoted, but it would be only a repetition of the 
ideas if not the language of McMahon. I doubt whether any expression can 
be found in any history, or any suggestion from any of the public- men of 
Maryland or Virginia, or any line xirawn on any map, until quite recently, 
which intimates either that the line of division between Virginia and Mary- 
land from the Chesapeake Bay to the ocean was not a straight line all the way, 
or that Calvert and Scarborough only made a partial settlement of the dis- 
puted boundary in 1668. Lord Baltimore evidently was advised promptly of 
what had been done, and approved the settlement made by Calvert and Scar- 
borough. Mr. Lee, in his letter to the Governor of Maryland in 1860, say?, 
(see page 12) *' Instructions to his son Charles, dated London, 21st March, 
1670, Lord Baltimore directs that he 'should forthwith make good all articles 



36 House Doc. Xo. 6. 

made by our dear brother Philip Calvert on his lordship's behalf, a,nd Colonel 
Edmund Scarborough, upon laying out the bounds between his lordship's said 
province and the province of Virginia, in relation to any grant of land. ' " 

The Virginia grants north of the line were made good to all who applied 
within thp seven years as prescribed in the agreement, each grant from Lord 
Baltimore containing the following recital : " That whereas, by certain articles 
of agreement, bearing date the 25th day of June, 166S, between our dear 
brother Philip Calvert, Esq., chancellor of our said province of Maryland, of 
tiie one part, and Colonel Edmond Scarburg, late surveyor-general of Virginia, 
of the other part, at and upon the laying out the bounds and running the 
divisional lines between Maryland and Virginia, from Wathins' Point, on the 
eastern shore of the Chesapeake Bay, to the seaside, " it was covenanted, &c. There- 
fore the lands were granted. 

These recitals, if there was nothing else, appear to mo OBonclusive proof of 
the fact that the divisional line was run by Calvert and Scarburg from the 
eastern shore of the Chesapeake by a straight line to the ocean. The proba- 
bility is that Philip Calvert, the chancellor of Maryland, either drew or di- 
rected the preparation of the grants containing these recitals. All the facts 
show that they were prepared carefully by some well-informed person. I can- 
not understand, in the face of the recitals above set forth, in contradiction of 
the avowed object of the contracting parties and of their own statements as to 
•what they did, how it can be successfully maintained that Calvert and Scarburg 
only settled the bounds between the two colonies from the Pocomoke River, 
fifteen miles east of Chesapeake Bay, to the Swansecute Marshes, seven miles 
from the ocean. 

Some stress is laid by the majority of the board upon one or two facts that I 
may as well notice here. One is that Scarburg and others had, in July, 1664, 
made affidavit that the AVatkins' Point on Smith's map was as far north of the 
"small spiral point, " afterwards determined by Calvert and Scarburg to be the 
*' Watkins' Point " of Lord Baltimore's charter " as a man could see on a clear 
dav. " That affidavit is pronounced false. If these gentlemen had the same 
•copy of Smith's map before them which we have, I would say it was not true ; 
but I do not know what map they had showed. It was agreed on the 
hearing that the plate from which the map we have was taken was found more 
than a century afterwards among some rubbish in a town in Pennsylvania. I 
do not know whether the affidavit-makers were deceived by a false map or not. 
For ought I know, they may have had a copy of Smith's map, which varied 
from the truth as much as the copy accompanying the relation of Maryland 
did. The grand assemblj^'of Virginia, in September, 1663, after saying "some 
ignorant or ill-disposed persons '" had controverted where Watkins' Point was, 
said " this grand assembly, by the care and special inquiry of five able-selected 
surveyors and two burgesses and the due examination thereof, " conclude that 
" Watkins' Point, " according to John Smith and discoverers with him in 160S, 
was opposite the Patuxent river, at least fifteen miles north of the point where 
it was fixed in 1668. So that the same charge might with equal propriety 
be made against that body of men, and Lord Baltimore's claim to Onancock 
might be criticised with equal severity. I am unable to appreciate how any of 
these things weaken the force of the facts I have shown. 



House Doc. Xo. 6. 37 

Another point is that Culvert and Scarburg say in their agreement that they, 
" after a full and perfect view taken of the point of land made by the north 
side of Pocomoke Bay and the south side of Annamessex Bay, have and do 
conclude the same to be Watkins' Point, from which said point, so called, we 
have run an east line, " &c. It is contended that the language of the agree- 
ment would be complied with if the line was run from the eastern line of the 
body of land thus designated to the ocean. This is an exceedingly strained 
construction, and I think a very wrong one. It is evident that a line so run 
would not have been a division line between the colonies from the Chesapeake 
to the sea, which was the object they professed to have in view, and which they 
said they had accomplished. 

No man with a map before him, and certainly no man standing on the 
ground as Calvert and Scarburg say they did, and took a " full and perfect 
view " of the whole body of land,, could assume that the body of land " made 
hy the north side of Pocomoke Bay and the south side of Annamessex Bay, " on which 
they determined that the true mathematical point to start their line of survey 
was, giving it the broadest construction possible, reached as far east as the pomt 
on the Pocomoke Eiver where the marked trees on the line are admitted to be 
by them from three to four miles. 

The counsel for Maryland, it is true, drew a line from Kingston, on the An- 
namessex, to Rehoboth, on a bend of the Pocomoke Paver, eight or ten miles 
from what anybody pretends is Pocomoke Bay, and claimed that to be the line 
Calvert and Scarburg intended and meant to comprehend in " Watkins' Point" 
by the language used in their agreement. That claim was more extreme than 
the claims of Virginia and Maryland to Manokin and Onancock. It would be 
as logical to say that the Chesapeake Bay extends to Harper's Ferry on the Po- 
tomac, or to Harrisburg on the Susquehanna, as to assert that Pocomoke Bay 
extends or ever extended to Rehoboth, or that Calvert and Scarburg ever in- 
tended by the language they used to say that it did. A river may, when called 
for, be construed to include the bay into which it flows, for some distance at 
least, but a bay cannot possibly include the river, whose stream forms or helps 
to form it either to its source or along its well-defined banks miles distant from 
its mouth. 

They say that they met on Watkins' Point from which "poini! '' they ran the 
line over Pocomoke River to the seaside, which was to be received as the bounds 
of Virginia and Maryland on the eastern shore of the Chesapeake Bay. I can- 
not see how it can be asserted now that they did not run from Watkins' Point; 
did not go within fifteen miles of the Chesapeake ; did not run across Pocomoke 
River ; did not do any of the things they say they did. Yet if their line is 
recognized only from Pocomoke River east, every statement made by them is 
disregarded, and a line is established which palpably violates the charter and 
contradicts every fact which Calvert and Scarburg assert to be true. How 
could they start from " Watkins' Point " and run across the Pocomoke River 
if they began their line east of this river? How can the line be a right line 
from Watkins' Point to the ocean if it begins at Cedar Straits, four miles south 
of the Calvert and Scarborough line, and meanders through Pocomoke Bay 
and up the river four miles north of its starting place to the line of 1668, and 



38 House Doc. Xo. 6. 

then follows it east to the sea. " We are directed to ascertain and determine 
the true line between the states, not to make lines arbitrarily."' The crooked 
lines meandering from Cedar Straits up the Pocomoke Bay and river to the 
Calvert and Scarborough line cannot possibly be the charter line, which all must 
admit was a straight line from the Chesapeake Bay to the ocean. It will not 
do to assert, without proof and without suggestion of the truth of the assump- 
tion, that Calvert and Scarborough, over two hundred years ago, ran a false 
line and cheated Lord Baltimore out of a strip of country from the Pocomoke 
River to the ocean, four miles wide and twenty-six miles long, when it was run 
and settled by his chancellor and confirmed by himself, with full knowledge of 
all the facts, and the line so established asserted by him to be his charter line 
in every possible form. I have shown the recitals in the grants made by him 
immediately afterwards ; there were hundreds of them, conveying 33,000 acres, 
all asserting that the Scai'borough and Calvert line was his true divisional char- 
ter line from the Chesapeake Bay to the ocean. 

When it is admitted that the Calvert and Scarborough line of 1668 is the true 
line of division, as it must be after two hundred years, and when the charter 
line is conceded to be a straight line from bay to ocean, which cannot be denied, 
when the exact line of their survey is fixed by thirty-three marked .trees and 
other permanent objects, as Mickler found was ti'ue in 1858, the western end 
on the bay and the eastern end on the ocean are fixed by simply protracting 
the line according to the marked objects. No mathematical problem can be 
simpler or plainer. When it is asserted that two and two make four, the argu- 
ment is exhausted. This proposition is of that character. We know that Vir- 
ginia and Maryland each holds east of the Pocomoke by the boundary line laid 
out and marked by the commissioners, asserting if to be the line of the char- 
ter, which is fully confirmed bj^ grants to that divisional line on both sides. 
Surely it must be evident that the property south of that straight line west of 
the Pocomoke River must be given to Maryland, if at all, not by her charter 
line as settled in 1668, but because of her continued, undisturbed possession of 
it. The settlement of the boundaries of the provinces from the Chesapeake to 
the sea was reported by Lord Baltimoi-e to the king and the colonial office in 
London, and was accepted by them as a straight line throughout. We have a 
letter written by order of the king to Lord Baltimore, August 10, 1682, in 
which he tells him the true way to prevent any complication between himself 
and William Penn as to the divisional line between Maryland and Pennsyl- 
vania is "by an admeasurement of the two degrees north from ' Watkins' 
Point, ' the express south bounds of your patent, and already settled by com- 
missioners between Maryland and Virginia. " That was strictly true ; it had 
been settled by Calvert and Scarborough on the line laid down four miles north 
of Cedar Strait, from which point Lord Baltimore would certainly have mea- 
sured if he had agreed to the measurement. 

The king, in the same letter, directs him to " determine the northern bounds 
of your province as the same borders on Pennsylvania by an admeasurement 
of tlie two degrees granted in your patent, according to the usual computation 
of sixty English miles to a degree, beginning from the south bounds of Mary- 
land, according as the same arc already settled by commissioners, as is above 



► 



House Doc. Ts'o. 6. 39 

mentioned. " In this clause the king did not tell him from what point of_ his 
southern line to begin his measurement. As the line was an east and a straight 
cue tm the Chesapeake to the sea, it made no difference to Lord Baltunore 
or William Penn from what point of it he started. The measurement of two 
decrees of latitude necessarily assumed that the lines north and south were 
strlic^ht. It is impossible to suppose that either the king or Ins council or the 
coWl ministry suspected that Lord Baltimore could run his Ime four miles 
further north into Pennsylvania, if he started from the east side of the Poco- 
xnoke Eiver, on the line run by the commissioners, whose ^^^lon they assumed 
^as final, than he would if he started from the point now called by Mary- 
land " Watkins' Point, " in the Chesapeake Bay ; yet that would be the fact if 
the theory of the crooked line be true. The king's letter accepted and con- 
firmed the Calvert and Scarborough line. Virginia being a royal province the 
kin<^ and Lord Baltimore alone had to agree to it. It must be obvious tha 
neither the king nor his council suspected when that letter was written that 
William Penn would lose a strip of territory four miles wide from the meridian 
of the first fountain of the river Potomac on the west to the ocean on the east 
if Lord Baltimore started east of the Pocomoke River to run his two degrees 
north, more than would be taken if he began on the Chesapeake Bay. Isor 
was it suspected that he could, after getting that advantage over Penn leave 
the line on the east side of the Pocomoke and reach down into the kings 
province west of that river for four or five miles, when his charteV called for a 
strai.^ht line all the way, and the commissioners had said that they had so run 
it Lord Baltimore in the same year wrote to Penn as follows : " My southern 
bounds being Watkins' Point, was so determined by commissioners from his 
majesty and others from mv father. Now, had they set Watkins^ Point higher 
up the bay, my father must have been contented therewith, and the northern 
bounds being the 40th degree of northern latitude, beyond which I am not to 
run •' These letters show, first, a final settlement agreed to by both parties, 
and, second, that the line of settlement was a straight one from the bay to 
the ocean, from any part of which the two degrees north might have been 

measured. , 

The majority of the board rely on the f^ict that the map of Herrman, pub- 
lished in 1673, which was followed substantially, indeed copied from by a major- 
ity of the subsequent map-makers, including Fry and Jefferson and Thomas 
Jefferson, as shown upon their face, draws the divisional line straight from the 
ocean along the Calvert and Scarborough line to a fictitious point correspond- 
in.^ somewhat with what is called Cedar Straits. Herrman had followed Lord 
Britimore's map of 1635 as to the location of his line, which is the only way to 
account for his blunder on the ground of honest mistake. I repeat that the 
only fact which the old maps establish is that Calvert and Scarborough did run 
a divisional line from the' bay to the ocean, and that it was a straight line all the 
way. They make the line of 1668 a part of the line of their maps. Herrman 
says on his • " These limits between Virginia and Maryland are thus bounded 
by both sides deputies, the 27th May, A. D. 1668, marked by double trees from 
the Pocomoke east to the seaside to the creek called Swansecute Creek. " Fry 
and Jefferson's and Thomas Jefferson's maps each note the fact that the line 



4^ House Doc. Xo. 6. 

they trace was run in 1668. There is no reason for believing that any of them 
ever were on the ground or professed to know with any accuracy where the 
line of 1668 was, and they all laid it down wrong. We know exactly where it 
IS. Michler in 1858, under the supervision of the commissioners of both states 
ran it from the Swansecute Marsh to the bay. He found thirty -odd of the old 
line trees and other monuments of Calvert and Scarborough along the line east 
ot the Pocomoke River. He protracted it west of that river for fifteen miles 
and struck the Chesapeake Bay at the extreme western angle of the bodv of 
land formed by the north side of the Pocomoke Bay and the south side of \n- 
namessex Bay, nearer the former than the latter, at the exact spot from which 
or agreeable to which Calvert and Scarborough say they ran their divisional 
line in 16G8. De la Camp protracted it afterwards for other commissioners of 
both states seven miles east to the ocean, and Junken ran it west over the 
present Smith's Island on the bay. If the map-makers had had the surveys 
of that line before them which we now have, they would have drawn the 
divisional Ime to the true Watkins' Point at the westernmost angle. It would 
have been impossible for them to have done otherwise and retain the line of 
Calvert and Scarborough, which was the acknowledged basis of the line they 
drew. That proposition needs only to be stated. The conclusion follows that 
the map-makers were all wrong, and all that their maps prove is that they are 
wrong, as no one will contend that the line of 1668 ever was where they lay it 
down. They make it cross Pocomoke B.iy at least four miles south of the 
mouth of the river, in order to run it straight to a false point made on paper 
to fit the line, instead of crossing the river, as we know it does, four miles 
north of its mouth, near Robert Ilolston's, running west to the promontory at 
the point four miles north of Cedar Straits. If any or all of these old maps 
had been placed in the hands of Lieutenant Michler or any other competent 
engineer, and he had been told to run the boundary line according to the in- 
formation they gave him, his first step would have been to find the Calvert and 
Scarborough line. As soon as he located three marked trees on it, his duty was 
plain and his task easy, and the old maps and all false points would have been 
discarded and the line protracted by the ascertained straight line on the 
ground. 

Herrman's map was approved and indorsed by Lord Baltimore, as. his answer 
to the question of the commissioners in London, March 26, 1678, shows. He 
says : " I answer that the boundaries, latitude, and longitude of this province 
are well described and set forth in a late map or chart of this province lately 
made and prepared by one Augustine Herrman, an inhabitant of the said pro- 
vince, and printed and publicly sold in London by his majesty's license, to 
which I hereby refer for greater certainty. " This was a clear recognition of 
the line of 1668, prominently laid down on the map, and of its being a straight 
line all the way, as his charter required. This map had the double efTect'of 
making all subsequent map-makers follow him in his fals^ Watkins' Point, and 
of making Virginia and all persons seeking to locate lands in that colony be- 
lieve that by the line of Calvert aud Scarborough she had no land to grant west 
of the Pocomoke River, which rationally accounts for her failure to take pos- 
session of any land south of the line of Calvert and Scarborough west of the 



House Doc. 'No. 6. 41 

Pocomoke. Heri'man wrote the words Watkins' Point in large letters all over 
the body of land, as a look at his map will show. It does not appear that any 
plat of the line or map of the country was ever filed anywhere by Calvert and 
Scarborough, so that the colonies or people might know what each was en- 
titled to. 

That Virginia never consented to a crooked line or gave up knowingly any 
portion of the land she was entitled to by virtue of the division made in 1668 
is shown conclusively by the fact that in 1682 she still complained of encroach- 
ments on her true boundaries in her report to the king and council, in which 
she said : " Neither are our northern boundaries less encroached on by the 
Lord Baltimore by an unfair line from the jDretended point of land called ' Wai- 
kins^ Point, '" east to the sea, by which (as supposed) " there is at least fifteen 
miles lost to Virginia. " She evidently assumed that the line she complained 
of had been run straight east from the Watkins' Point on the Chesapeake to 
the ocean, and she never suspected, what is now for the first time suggested, 
that Scarboi'ough had cheated Philip Calvert, so as to get the line east of the 
Pocomoke, four miles north of the charter line. She charged, fourteen years 
afterwards, that the line was unfair to her. Surely she granted Maryland 
nothing which the line of 1668 gave to her. Maryland's possession south of 
the line west of the Pocomoke was obviously the result of Virginia's ignorance 
of her rights — the false impression produced by erroneous maps, which showed 
that there was no land south of the line west of Pocomoke. The almost utter 
want of value of that land, its want of convenient connection to the balance 
of Accomac, (three-fourths of what there was of it being swamp,) prevented 
any Virginia citizen from asking a patent for it. Very few patents were 
granted by Maryland south of the line for from five to eight years after 1668. 
It was gradually but slowly taken up by fishermen and others after the better 
land was patented. The now known value of the oyster fisheries was not then 
even suspected. If it had been, more attention would have been paid to the 
line. 

Stress is laid on the 21st section of the Virginia constitution of 1776, in 
which she surrendered to Maryland, Pennsylvania, and North Carolina the ter- 
ritories contained in their charter^, which, by the way, Maryland did not ac- 
cept, if acceptance was necessary. It seems to me to confirm my view. Vir- 
ginia had never, so far as appears, repealed her act of September 10, 1663, 
claiming the line of the county of Accomac as running east from near Nanti- 
coke, some fifteen miles north of the Calvert and Scarborough line. She now 
consented that the charter lines as fixed in 1668 should be considered as per- 
manently established. But it. never entered into the brain of any man in Vir- 
ginia or Maryland that the constitution meant to annul the line of 1668 and 
let Maryland run a new line from Cedar Straits, either east to tlie. ocean or by 
a crooked line which is now sought to be declared the true line to which Vir- 
ginia in 1776 surrendered her claim. In the Maryland convention which met 
to frame the constitution the following resolution was adopted October 30, 1776 : 

" Resolved unanimously/, That it is the opinion of this convention that the sole 
and exclusive jurisdiction over the territory, bays, rivers, and waters included 
in the said charter belongs to this state, and that the river Potomac, and almost 

6 



42 House Doc. Xo. 6. 

the whole of the river Pocomoke, being comprehended in the said charter, the sole 
and exclusive jurisdiction over the said river Potomac, and also over such part 
of the river Pocomoke as is comprehended in the said charier, belongs to this state, and 
that the river Potomac and (hat part of the Chesapeake Bay ivhich lies between the capes 
and the south boundary of this state, and so much thereof as is necessary to the navigation 
of the rivers Potomac and Pocomoke, ought to be considered as a common highway free for 
the people of both states, without being subject to any duty, burthen, or charge, as hath 
been heretofore accustomed. " 

If the charter line ran east from Cedar Straits, no part of the Pocomoke 
River could possibly be in Virginia. Not only "almost" the whole, but the 
entire river and a large portion of the bay would have been in Maryland, and 
the same clear assertion of claim would have been made to it that was set up 
in regard to the Potomac. The language used is precisely such as would be 
adopted to maintain the line of Calvert and Scarborough, which crosses the 
Pocomoke some four miles from its mouth, leaving "almost the whole of the 
river Pocomoke" in Maryland, comprehended in Lord Baltimore's charter. 

They had practically located their southern boundary on the line of 1668 east 
of the river from, that date, and Worcester county, which was laid off in 1742, 
never sought to claim any jurisdiction south of that line. The action of the 
convention dissipates all idea of any grant from Virginia or any claim of Miuy- 
land by adverse possession of any land south of the charter line. 

The compact of 1785, the language of which 7 a^rree, was carefully considered, 
and is entitled to great weight in our determination on this subject, is full of 
statements, suggestions, and covenants fortifying the view I take. Section one 
agrees " that the waters of the Chesapeake Bay and the river Pocomoke within 
the limits of Virginia be forever considered as a common highway, " &c. 

Section 8 provides that laws and regulations for keeping the channel, &c., 
" of the river Pocomoke within the limits of Virginia'''' shall be made with the consent 
of both states. How did the river Pocomoke get into the limits of Virginia for 
any part of its course, as both states by that compact (now made perpetual) 
admitted and agreed that it is, if the boundary line of Calvert and Scarborough 
was not run as I contend it was ? No part of it even could be included in Vir- 
ginia if the charter line i\an from Cedar Straits east, or if Culvert and Scar- 
borough only ran the divisional line east from the Pocomoke River to the sea, 
and consented to or agreed on the crooked line now proposed to be made from 
Cedar Straits to their line by the meanders of the Pocomoke Bay and river. 
Certainly no part of the river is within miles of any part of Virginia on Ilerr- 
man's map or the maps of Mr. Jefferson and others who followed him. 

Section 10 admits that tiiere may be doubt as to the exact location of ^^a^ 
kins'' Point, liut while that doubt remains unadjusted Virginia reserves the ex- 
clusive right to try all offenses committed in the doubtful or disputed waters 
by foreigners on foreigners. The doubt probably had sprung up by reason of 
the erroneous location of Watklns^ Point on many of the maps, and by the pos- 
session by Maryland of land south of the line. But it shows that Maryland 
admitted the doubt as to her right to hold it even then, and neither asserted a 
grant from Virginia for it, as it is now alleged must be assumed, nor set up ad- 
verse right by such holding. 



House Doc. No. 6. . 43 

Truth is always consistent. Each link in the broken chain, when found, 
will fit and agree with every other. I propose to submit this chain of evidence 
to that test. Calvert and Scarborough only marked their line ; only ran it, as 
claimed by my colleagues, from the Pocomoke River to the marsh by the sea 
side, leaving seven miles east of the line they marked, before the end of it on 
the ocean was reached. What became of that section of country ? Mr. John 
De la Camp, engineer to the joint Maryland and Virginia boundary commission 
in 1868, tells the whole story in his report. He says : " The part of the line 
between Chincoteague Bay and the Atlantic Ocean, involved the prolongation 
of part of the line on the mainland visible from the shore across the Chinco- 
teague Bay to the islands bordering on the Atlantic Ocean. And here a little 
difficulty arose. Although this prolongation was executed with as much care 
as circumstances admitted, the. line touched those islands at points north of 
the traditionary line, which divides two large tracts of land, the deeds of 
which were recorded in the land offices of the two respective states, 'calling for 
this line as the state line. This traditionary line is marked by strong posts, 
and at the west shore of Pope's Bay even by a stone monument. " 

The sub-committee for both states "agreed upon recommending the tra- 
ditionary line acknowledged by the land offices of both states as the boundary 
line, " which, with the storie monument as a pivot, leaves about the same quan- 
tity of land in each state as if the Calvert and Scarborough line had been ex- 
actly prolonged. Surely these facts show that the Calvert and Scarborough line 
was extended substantially for seven miles further than they marked it, even 
to the ocean, and the patents from Lord Baltimore and Sir William Berkley, 
commencing within as few years after 1868, called for a divisional line, which 
Mr. De la Camp found marked as he described, doubtless by the state sur- 
veyors who made the surveys on which the grants were issued. It would be 
•useless to cite further proof as to the eastern end of the line ; that given is 
conclusive and uncontroverted. 

Next, as to the western end. Let us see what links are there. General 
Michler, in his report to the joint commission in 1859, speaking of the western 
angle at Jane's Island, says : " Although the angle at this point of land where 
it Strikes the sound is, even at this day, the most western one, still many years 
ago the land made out into the sound a much greater distance. ' Jane's Island,' 
is°said by Captain John Nelson, aged 72 years, to have extended within his recol- 
lection to the present position of the light-ship, now anchored about a mile 
and a half out from the present shore-line. " * * * " The land lying south 
of the prolonged or broken line is principally marsh, the area of firm land 
south of it and west of the Pocomoke not exceeding eight squai*b miles. " 
There is no doubt, therefore, that the point from which Calvert and Scar- 
borough started their line of survey from the Chesapeake Bay east to the ocean 
was the extremest western angle of the body of land formed by the north side 
of Pocomoke Bay and the south side of Annamessex Bay ; that it was the only 
promontory on the bay, all the bay coast south of it being mere marsh, palpa- 
bly always so at Cedar Straits. That their line was actually run from that angle 
is obvious. Nobody, I presume, will venture to assert that they could have run 
a line from the Pocomoke river, which was fifteen miles distant, east to the 



44 House Doc. Xo. 6. 

ocean so accurately by guess that Michler, with his instruments, would strike 
the very mathematical point. on Chesapeake Bay which they had described in 
their agreement as the point from which they started. The age of miracles 
had passed before their day, and if it is to be assumed that the'y intended to 
state a falsehood, they could not possibly have made it correspond so accu- 
rately with the truth ; thej^ must have run it, or Michler never could have traced 
it back two hundred years afterwards for fifteen miles on the reverse line to the 
very spot they described. 

Lord Baltimore granted that extreme westernmost point March 19th, 1G66, 
two years before the line was run, to Henry Smith. The Patent contained 150 
acres, describing it as " A parcel of land formerly called Smitlis Island, (now 
a Penynsula,) lying and being in Annamessex, beginning at a marked tree 
standing on the southernmost side of the Island ; thence running E. by X., by 
the Bay side, to the mouth of Cornelius Ward's creek ; thence running N.' by 
AV. to a marked Pine standing by the Bay side; thence running W. by S. to a 
marked tree standing on- the northernmost side of the Island ; thence running 
by the Bay side, including the pitch of the point, to the first bounds." Thil 
Patent shows several noticeable facts. First, there were plenty of trees there 
which never grow on the marshes; there never was a tree on the mainland 
within three miles of the angle at Cedar Straits, claimed by Maryland to be the 
" Watkins' Point " of the charter. Smith, in his history, says there were trees 
on the Watkins' Point he named, on which thgy made marks and crosses. 
Whether the surveyor found the "marked Pine" Lord Baltimore's patent calls 
for, or made the marks on it, cannot perhaps be determined. John Smith and 
his companions had marked trees there many years before, ^comc/. , It was a 
Point, and a })oint of high land on which trees grew; a Promontory or head- 
land. Third. It had "formerly," long before it was granted to Smith, before 
either Lord Baltimore or any private person had any occasion to give it a name, 
been called ''Smith's Island;' most probably after Captain John Smith himself, 
from the names, notes, marks, and crosses he and his companions had placed 
on the trees half a century before. 

On the 11th day of June, 1672, four years after Calvert and Scarburg had run 
the line from it and fixed it as the true " Watkins' Point" of Lord Baltimore's 
charter, Smith conveyed one-half of it to Edward Price, and in the conveyance, 
after setting forth his patent in full, among the lines by which he conveys is 
the following : " Thence running down the aforesaid Bay side to the northern- 
most side of the point called ' Watkins' Point,' and from thence running round 
the said Point to a pond called Duck Pond, kc'' How did that point acquire 
the name of Watkins' Point between 1666 and 1672, if Calvert and Scarburg 
did not so name it in 1668? That it did acquire it is not a fact depending on 
tradition or the truthfulness of witnesses detailing old men's legends; it is a 
recorded fact, made at the time wlien all the facts were fresh, and its materi- 
ality in this or any other controversy could not have been suspected. It is 
worth all the speculations and guesses of men after two hundred years have 
elapsed. I do not see how the question can be answered, except by the fact of 
the determination in 1668, that it was the true Watkins' Point. That name 
and the accuracy of the line as developed by Michler, coupled with the facts 



House Doc. No. 6. 45 

in Smith's History, and the acknowledged and proved character of the land 
there and above and below it, are themselves sufficient now to show that the 
divisional line was in fact run and properly run from that point in 1668. All 
the witnesses agree that this point, soon afterwards called Jane's Island, was 
the highest point on that part of the Bay, indeed the only " Promontory or 
Headland" on it; that it w^s called the Mountain of Annemessex; that there 
was a peach orchard on it in former times; that it extended far out towards 
the present Smith's Island, which is still clearly shown by the soundings laid 
down on the charts of the Coast Survey. The Maryland statement sets forth 
these facts so clearly that it is only necessary to refer to it to show that it had 
all the requisites of the " Wathhis' PoinV of the Charter, while the angle at 
Cedar Straits had none of them. 

I propose now to follow the patents and deeds over " Smith's Island," which 
is situated in the Bay of Chesapeake, about five miles from the present Bay 
shore, and see how far they elucidate the question. It is certain that a line 
from Smith's Point on tlie Potomac or Cinquack south of it to Cedar Straits 
would not intersect that island, but would run south of it altogether, while a line 
drawn to the Watkins' Point I contend for ivould intersect it. 

Some care is required to prevent confusion while speaking of the line across 
-this island, because of the number of Smith's Points and Islands in the vicinity, 
and because of the changes in the names of the places, which occurred about 
the time referred to; to Smith's Point on the Virginia side of the Chesapeake, 
at the mouth of the Potomac, though in fact an island, was never called one, 
and it is no where referred to in connection with grants on the Eastern Shore, 
or on the island in the bay now called " Smith's Island," though counsel on 
both sides of this controversy at one time thought it was th-e Smith's Island re- 
ferred to in the first grant of Sir William Berkeley, made in 1667, on the pre- 
sent Smith's Island; they all abandoned that theory when the facts were care- 
fully examined and understood. The large island in the bay now called Smith's 
Island, which lies much nearer the eastern than the western shore of the Ches- 
apeake, and was much nearer, as Michler's report shows, to the "Watkins' 
Point," I claim as the true one, two hundred years ago, than it is now, had no 
name till after the Calvert and Scarburg line was run. It was barely marked 
on Smith's map, and was not noticed by Lord Baltimore in 1666, when he laid 
off Somersett county; yet, an equitable division of it became necessary about 
that time, in order to settle all questions of boundary between the colonies on 
the Eastern Shore, to which this island naturally belonged. At that time the 
only Smith's Island known was the westernmost angle of the Watkins' Point of 
Calvert and Scarburg, as shown by the patent of Lord Baltimore for that. point 
in 1666, as already explained. With this explanation the patents and deeds for 
and on the present Smith's Island will be easily understood. The first grant on 
it was by Sir William Berkeley, governor of Virguiia, to Henry Smith, October 
9th, 1667, for 1,000 acres, described as being in Accomack county, Virginia, 
^•beginning where the east and west line from 'Smith's Island' intersects, and 
bounded on the northern part therewith," thence by lines so as to embrace all 
the island .south of that line. Several important questions are suggested by 
this <rrant. It will be remembered that after the Scarburg raid in 1663, friendly 



46 House Doc. Xo. 6. 

negotiations and personal interviews were had between Governor Calvert and 
his chancellor, Philip Calvert, and the governor and council of Virginia, for the 
purpose of determining and establishing the true line of division between the 
colonies on the Eastern Shore. Lord Baltimore had, in 166G, so far withdrawn 
his extreme claim as to abandon the line east from Onancock, and laid off Som- 
erset county, claiming Cedar Straits as his southern boundary, running his line 
from thence east to the ocean. Under that claim all of the present Smith's 
Island (then without a name) would necessarily have been in Maryland, yet the 
governor of Virginia, in October, '1G67, issued a patent for part of it, calling for 
an east and west line from Smith's Island, (soon afterwards called Janes' Island,) 
on the main eastern shore, as the northern boundary of his grant, which line is 
over four miles north of an east and west line from Cedar Straits, and grants 
land which could not possibly belong to Virginia, on the theory that Cedar 
Straits was the initial charter point on the bay. If there-was no such line from 
"Smith's Island," as the patent called for, how could he have referred to it? It 
will hardly be answered that he created an imaginary line, when its existence 
is proved by the agreement of Calvert and Scarburg, and two hundred years 
later is traced with absolute accuracy by Michler across the Eastern Shore to 
tl^e bay, and by Junkin and others across the island, and when it is supported, 
as I will show, by patents and deeds from Lord Baltimore and his grantees, and 
by subsequent jjatents and deeds from Virginia. 

Of course there is a difficulty in explaining accurately how Sir William Berke- 
ley, in October, 1667, could refer in his patent to Smith to the east and west line 
from the main shore at "Smith's Island," and why he continued the east and 
west line across the large nameless island in the bay. He did it, and in the ab- 
sence of nearly all the old colonial records of Virginia, which, we were advised, 
have been destroyed with many of the old records of Maryland also gone, the 
probabilities of the case, as shown by secondary evidence, must govern our con- 
clusions. The Calvert and Scarburg agreement was not signed till June, 1668. 
The line run and agreed to by them, is the only one which was ever run. Their 
line did not extend west of the Eastern Shore of the Chesapeake Bay. How, 
then, it may properly be asked,' could Sir William Berkeley know in October, 
1667, where that line would run by which he bounded his patent to Smith on 
the north ? 

I am satisfied this Watkins' Point of Lord Baltimore's charter was substan- 
tially agreed on by Philip Calvert and the governor and council of Vii-ginia, and 
the location of it on Smith's Islar^d, on the main shore determined on before 
October, 1667, and that it was agreed that the outlying lands in the bay should 
be treated and divided by the same divisional line as that agreed on for the di- 
vision of the mainland. Many facts, other than the action of Sir William 
Berkeley, sustain that assumption. We had record evidence before us, that on 
the 11th day of June, 1668, twp weeks before Calvert and Scarborough signed 
their agreement as to the boundary and land grants, Charles Calvert, thegov- 
ernor of Maryland, signed a covenant setting forth in detail the names of the 
persons, and the exact number of acres, wliich had been cut off by the line as- 
sumed to have been settled prior to that date, in which he says: "Whereas the 
lands belonging to the persons above mentioned are found since the lines are 



House Doc. l^o. 6. 47 

laid out on the Eastern Shore in Somerset county, to be within this province of 
Maryland, I do hereby promise to ratify and confirm, by virtue of his Lordship's 
instructions to me directed, every of the lands by patent or grant,"' &c., made 
by the authorities of Virginia. Kot only had the lines been all settled then,* 
but the governor had received definite instructions from Lord Baltimore, then 
in England, exactly what to do in regard to them. Of course Lord Baltimore 
issued his instructions because of information a,s to all the facts first sent to him 
from Maryland, which, by the ordinary means of communication then, it is 
agreed, would have taken many months, rendering it highly probable that the 
agreements were all in fact made before October, 1667, and their formal ratifi- 
cation and settlement delayed till Lord Baltimore was fully advised' and gave 
his sanction and orders as to the final and formal consummation of them. In 
this connection, as before suggested, I can understand how Scarborough's grants 
north of the divisional line may have operated to delay final action in signing 
the agreement as to the boundary. He alone had power, by virtue of his com- 
mission as surveyor-general, to lay off the boundaries of the colony, subject to 
the advice and order of the governor and council. He might have well have 
held back the final ralyification of the divisional line until instructions were re- 
ceived from Lord Baltimore and his orders consummated protecting all the 
Virginia grants north of the line in which he was so largely interested. The 
covenant of Governor Calvert is on pages 34 and 36 of the volume of state- 
ments and evidence, dated 1872, submitted to us. I have examined it as care- 
fully as I could to ascertain when the grants protected by it were made. Many 
of them will be found on pages 136 and 137 of that volume, and I have been 
unable to fjnd that any of these patents were issued or any of the entries made 
after July, 1667. They run from 1661 to 1666— numbers of them in the latter 
year. If the fact is as I believe it to be, it strongly fortifies the assumption that 
the line was in fact agreed on before July, 1667, and explains how Sir William 
Berkley issued the patent at that time on Smith's Island, calling for the line 
on the main Eastern Shore. If no such line had been agreed on, it is hard to 
understand why the granting of patents by Virginia, which had been so ac- 
tively carried on in 1666, should have ceased in 1667. The patent of October, 
1667, certamly shows that Sir William Berkley knew of the existence and 
general location of the line at that date; and his grantees, Henry Smith and 
Colonel William Stevens, who aided Calvert in establishing the line, knew 
beyond question exactly where the line would terminate on the main shore and 
how an east and west line drawn from it would divide the island in the Bay. 
The next patent, indeed the patent for the balance of this island was issued by 
Lord Baltimore on the 2d day of Septenjber, 1682, for 1,000 acres to Henry 
Smith, of Somerset county, Maryland, as assignee of Colonel William Stevens, 
of that county, and the same person who had received the one-thousand-acre 
grant from Sir William Berkley, Governor of Virginia, in October, 1667. 

The patent recites that it was issued "according to a certificate of survey 
thereof taken and returned unto the land office of the city of St. Marie's, 
bearing date the 7th of June, 1679, and there remaining upon record." Un- 
fortunately the record of that survey cannot be found. The grant is called 
" Pittscraft," and among the lines described in it is the following: "Thence 



48 ■ House Doc. Xo. 6. 

for the eastern boundaries, bounded down the side of said sound by the said 
sound to the divisional line drawn between Maryland and Virginia ; thence for 
the southern boundaries, bounded by the said divisional line running west to 
the aforesaid bay side." There are several noticeable facts in this patent : First. 
Be it remembered that if Calvert and Scarburg only ran their line from the 
Pocomoke river east to the sea, leaving all the balance of the line to be divided 
by meandering down the Pocomoke river and through the sound to the southern 
angle, now called by Maryland " Watkins' Point," no divisional line, such as 
Lord Baltimore describes in this patent, coujd by possibility have been run 
through any part of the island to which this grant relates. Second. This patent 
runs an east and west line across the island, exactly as the patent from Sir 
William Berkley had done, showing that a prolongation of the n^ain-shore line 
had been agreed upon. It is assuming a good deal to suppose that Lord Balti- 
more and his oflBcials, as late as 1682, were ignorant of the true boundaries of 
the provinces, when, as early as 1656, he had by proclamation directed his 
governor and council " to cause the bounds of Maryland to be kept in memory 
and notoriously known, especially the boundaries between Maryland and Vir- 
ginia on that part of the country known there by the name of the Eastern 
Shore." 

And it would be assuming still more to assume, in order to fix a '* Watkins' 
Point" at Cedar Straits, that Colonel William Stevens, who had the survey of 
Pittscraft made, did not know that an east and west line from that point would 
leave no divisional line on the island on which his patent was laid, and that 
Henry Smith, who had obtained a patent from Governor Berkley for 1,000 acres 
of it in 1667 at that time, and when he took the assignment of Stevens' survey, 
both being citizens of Somerset county, Maryland, did not know all about the 
true location of the line spoken of and agreed to in both patents. Lord Balti- 
more's patent called for the same line as Sir William Berkley's, calling it the 
divisional line between Maryland and Virginia. Sir William Berkley had 
called for the east and west lines from Smith's Island, so that both agreed pre- 
cisely with the line of 1668; therefore, whatever mistakes map-makers made, 
or however they laid down the islands, rivers, or bays, it was impossible for 
Henry Smith or Colonel William Stevens, both intelligent citizens of Maryland, 
to be mistaken as to the location of the land they surveyed and- purchased. 
The island lay in view of Smith's Point on the Virginia side of the bay, still 
nearei to Cedar Straits, and nearer still to '^ Smith's Island,'^ the terminal points 
of the Calvert and Scarburg line on the eastern shore. They knew an east and 
west line. The sun and the north star shone then as now ; no comj^ass was 
needed to determine it ; suggestions of mistakes as to the location of the island 
in the bay by Smith and Stevens in order to destroy plain facts will hardly be 
seriously regarded. I cannot understand how these grants containing su*h re- 
citals could have been made to such men by both governments if there had 
never been any divisional line run between the colonies except east of the 
Pocomoke river, which is fifteen miles distant from the Chesapeake bay, where 
the acknowledged line crosses it, if from that river the liiie meandered down 
through it and the bay to Cedar Straits. Smith and Stevens must have known 
that no cast and west line could possibly toucli the island tliey were buying 



House Doc. ^^o. 6. ' 49 

and selling. In other words, to maintain the crooked line theory Sir William 
Berkley, Lord Baltimore, Colonel Stevens, and Henry Smith, the two latter 
especially, as they wei'e on the ground, are assumed to have been utterly igno- 
rant of what they were doing (when the reverse is the reasonable presumption). 

It must be borne in mind that Colonel William Stevens was, as shown and 
urged zealously before us, the richest man and largest land speculator on the 
Eastern Shore. He was, shown to be the founder of Rehoboth, one of Lord 
Baltimore's commissioners to lay off Somerset county, and one of the justices 
of the peace summoned by Philip Calvert to aid and advise him in laying ofT 
the Calvert and Scarborough line. It was therefore impossible for him not to 
know all the facts; and when he had a survey made and recorded to meet the 
Virginia survey and patent for 1,000 acres, and thus connect his with the Vir- 
ginia 1,000 acres grant, and called for the divisional line between the states, 
from Jane's Island or the Western angle as the line of his patent, it is evidence 
OVERWHELMING of the existence of such a divisional line run by Calvert and 
Scarborough. 

It is thus that the acts and lines on Smith's Island demonstrate the truth of 
the position that the divisional line of 1668 ran, as I contend it did, from the 
bay to the ocean. 

Again, to show that the line prolonged from Jane's Island, the Watkins' 
Point of Calvert and Scarborough, was a well-known and i^erfectly recognized 
line, carefully marked, and running east and west through what is now called 
Smith's Island in the bay; I refer to the patent granted in 1703, for some cause 
or other disregarding the grant to Henry Smith, in 1667, for the Virginia por- 
tion of it in Accomac county, by the governor of Virginia to Francis McKen- 
nie, Arcadia Welborne and others. In this patent the northern boundary is 
thus described: "Beginning at a marked lightwood stump standing near Nan- 
ticoke Sound, thence by marked trees and over marshes and guts, west one 
thousand and twenty poles to the Main Bay of Chesapeake." 

The grant of Lord Baltimore to Pittscraft, said the line was surveyed and the 
survey recorded. This Virginia grant, in 1703, found the corner tree on the 
Sound (then called Nanticoke, now Tangier,) marked, and the marked line- 
trees all along the line, which was 1,020 poles long. How could the distance of 
1,020 poles be ascertained without a survey ? Can that be pronounced false, too, 
after Mr. Junken finds, by his late survey, that the width of the island on that 
line, after allowing for the washing away, which is proved and admitted, was 
about 1,020 poles? 

In August, 1693, Henry Smith, the grantee in both patents, and a citizen of 
Somerset county, Maryland, sold to John Tyler, of the same county and pro- 
vince, two hundred acres of land, which the counsel on both sides located 
by elaborate proof and argument on the eastern side of the island, about one- 
half of it north and the other half south of the line which Virginia claimed as 
the prolongation west of the line of Calvert and Scarburg. He set forth in the 
conveyance both his patents from Maryland and Virginia, carefully by the metes 
and bounds therein given, and then describes the two hundred acres he was 
conveying partly thus: 

7 



50 ■ House Doc. Xo. 6. 

"A part or parcel of land taken out of the aforesaid 2,000 acres of land 
granted as aforesaid, viz, by Sir Wm. Berkley and the Lord Baltimore, as by 
the several patents more amply and fully appear," &c. 

I attach more importance to the facts set forth in this deed than to any other, 
because it was made b}^ the man to whom both grants issued, a man who knew 
all the facts, who could have no interest in reciting falsehoods, himself a citizen 
of Maryland, conveying to another citizen of Maryland. "While the action of 
Calvert and Scarburg was yet fresh, and doubtless within his personal knowl- 
edge, he went before two justices of the peace of Somerset county, with the 
deed, and had the following certificate endorsed on it: 

"Hex. Smith. [Sealed.] 

"Signed, sealed, and delivered in sight and i^resence of us, 

" Sam'l Alexander. 
"J. Gray. 

" In memorandum that this day, viz, the 8th day of August, in the .5th year 
of their ma'ties reign, William and Mary, over England, kc, Anno Domini, 
1693. Before Thomas Xewbold and Jno. King, gents., two of their ma'ies jus- 
tices of the peace for the county of Somerset, in the jjrovince of Maryland, 
came the within-named Henry Smith, in his proper person, and did acknowl- 
edge the within-mentioned land, containing two hundred acres, part thereof 
lying in \'irginia and part in Maryland, to be right of him, the within-named 
Jno. Tyler, and his heirs forever; and for this acknowledgment, quitclaim, and 
agreement the said Jno. hath given him, the said Henry, nine thousand pounds 
of tobacco. 

■ " Ths. Newbold. 
" Jno. King. 

" Coram nobis. 

"Entered llie 17th of August, 1693, pr. 

" Jno. "West, Cir cr. " 

It seems to me imi")ossible that this deed, containing such recitals, could have 
been made by, to, and before persons so familiar, from the very nature of things, 
with all the facts, if, as is now assumed, Calvert and Scarburg never laid down 
any line west of the Pocomoke River, but followed its meanders to the bay and 
thence to Cedar Straits. 

Again, in August, 1718, John Caldwell, attorney for John Smith, grandson of 
the original grantee in both patents, conveyed 150 acres of land to Arthur Parks 
and Tliomas Summers, which was shown by other deeds and proofs to be very 
near tlio protraction of the Calvert-Scarburg line, which he bounded as follows : 

" Beginning where an east and west line enters the marsh from Jane's Island, 
being the Virginia line, tlirough the aforesaid Smith's Island, where the said 
line enters the marsh upon the west side of a creek called Dogwood creek," &c. 

It will be observe<l that eacli deed keeps up the call for the boundary line 
between Maryland and Virginia about the place where the Calvert and Scarburg 
line protracted would cross the island, and all call for an east and west line 
across it. These facts do not rest on tradition, and are not dependent on hu- 
man memory or human prejudice; they are the record of facts made at the 



House Doc. Xo. 6. 51 

time without reference to this or any other dispute. As late as 1848 Kicharcl 
Evans conveyed to John Marshall, of Accomac county, a resident of the south- 
ern part of Smith's Island, a tract of land described thus :' "On the north by 
the lands of Elijah Evans, of Somerset county, Maryland, and the state line 
separating the states of Virginia and Maryland." This tract is about the 
point where the traditionary line from Jane's Island crosses Smith's Island, 
perhaps just south of it. It is unnecessary to elaborate further by tracing the 
deeds over this island. Both sides admitted before us, indeed the facts proved 
conclusively, the existence of a divisional line between the states, running 
nearly due east and west across it. Virginia claiming a continuation of the Cal- 
vert and Scarburg line, and Maryland contending for a line from Horse Ham- 
mock on the eastern to Sassafras Hammock on the western side of the island. 
Either line establishes the proposition I maintain. They are about a mile apart ; 
that of Maryland being over three miles and that of Virginia over four miles 
north of any possible east and west divisional line from Cedar Straits, while both 
are near and necessarily result from and are the product of the Calvert and 
Scarburg line to the westernmost angle on the main shore. Many circum- 
stances combined, especially of late, to make as many of the citizens and resi- 
dents of Smith's Island as could possibly do so become citizens of Maryland. 
The island was so fiir from Drummund Town, or any other settled portion of 
Accomac county, Virginia, and the means of reaching these, especially in- the 
winter or in stormy weather, so precarious, that the inhabitants of the Virginia 
portion of the island were almost deprived of the rights of citizenship any- 
where. On the other hand, the island was near the Maryland shore. The 
largest and most populous portion of it was unquestionably in Maryland. 
Crisfield, on the main shore, and other points in Somerset county, were spring- 
ing up, and the business and social intercourse of the islanders was almost ex- 
clusively with Maryland. Two justices of the peace, who could take acknowl- 
edgment of deeds or decide cases, were kept in commission by Maryland. In 
1835 she established an election precinct on the island, and her commissioners, 
■without going near " Horse Hammock," where John Tyler lived, hearing that 
he was, perhaps, the best qualified man on the island for judge of elections or 
justice of the peace, laid off the election precinct so as to take in his house, and 
he was soon afterwards qualified as one of the justices. It does not seem to me, 
under all the circumstances, that the action of Maryland, then or since, in re- 
gard to that line is sufficient to give title by possession if the divisional line is 
where all the patents and deeds place it, viz, a pi'olongation of the Calvert and 
Scarborough line. It is perhaps unnecessary for me to set forth further the 
evidence as to tiie recognized stones and ti^ees, or the fact as to the marriage 
house along the traditional line north of the Horse Hammock line. Many of 
the voters on the island north of the Maryland precinct voted in Virginia as 
late as 1855, in the race between Governor Wise and Mr. Flournoy. I su2:>pose, 
however, they generally voted in Maryland. 

It seems to me that the patents, deeds, marks, and traditions ought not to 
be abandoned for a precinct line which recognizes neither the Cedar Straits nor 
the Calvert and Scarborough line, especially as it was established so recently by 
men who never saw it. 



52 House Doc. Xo. 6. 

If the action of the Marvlaii'l authorities, in regard to the election precinct 
and otlier matters on Smith's Ishmd is to be regarded as conclusive or highly- 
persuasive as to her right, the action of her courts ought to be more so. The 
case of the schooner "Fashion" was one of the principal causes leading to the 
passage by Maryland of the act of 1852, out of which this commission grew, 
and may be briefly stated as follows: Some time previous" to 1851 Maryland 
had passed a stringent law prohibiting the dredging for oysters in her waters. 
John Tyler, sometimes called John Tyler of Severn, was captain of the 
" Fashion," and was dredging for oysters on the Little Eock, in Tangier Sound, 
in what was clearly Maryland waters, if Cedar Straits is the boundary line, and 
in what is clearly Virginia waters, if the Calvert and Scarborough line extended 
to the western angle at Jane's Island. The volume containing the Maryland 
and Virginia Eeports of 1872, from pages 225 to 240, gives the pleadings and 
court entries in full. They were laid before us the record in the case. Dis- 
tinguished counsel appeared on both sides, J. W. Crisfield, W. S. Waters and 
"William Daniel being attorneys for John Tyler, and "William Tingle and I. D. 
Jones for Cullen. "While there was a good deal of testimony taken in regard 
to it, it is very clearly stated in the deposition of John Tyler, taken at Crisfield, 
Maryland, June 27, 1876, as the following extract shows : 

"3d question by same. "Were you concerned in the trial of the schooner 
Fashion for dredging for oysters unlawfully in Tangier Sound in 1851, and how ? 

"Answer. 1 was captain of the vessel, and was arrested by Captain John Cul- 
len, who was on board of the steamer Herald, and was carried before Justice 
J. B. Stevenson, of Maryland, and was convicted, and the vessel was con- 
demned. 

"4th question by same. "Where were you dredging? 

"Answer. I was dredging on the Little Rock, which is between Great Rock 
and Filliby's Rock. 

"5th question by same. "Were you present when the appeal in the case was 
tried at Princess Anne? 

"Answer. I was. 

"6th question by same. Did the question arise in the case as to where th& 
state line ran from Smith's Island to Little Annamessex, or what was the ques- 
tion in the case? 

"Answer. That was my only plea, tliat I was dredging in Virginia waters. 

" 7th question by same. Did you hear the testimony in the case, and who were 
examined as witnesses? 

" Answer. I heard the testimony, and Thomas Tyler, my grandfather, "William 
Tyler, James II. Hoffman, "W. G. Hoffman, and others, were my witnesses. The 
state had Mr. James Lawson, and other old gentlemen from the lower part of 
Annamessex Neck, on her behalf. 

"Sth question by same. "Were other parts of the line between the states en- 
quired into, and what parts? 

"Answer. My grandfather I had heard speak a great deal about the line, and 
I rested on what he had told me about the line, and dredged in accordance with 
what he told me. The line across th'e island, and I believe also the line extend- 
ing from the island as far as to Pitt's Creek on the Pocomoke River, was dis- 
cussed in court. 

"9th question by same. State what was proved as to the line across Smith's 
Island, and the line across the sound? 

" Answer. My grandfather said that the line ran from the stone three-quarters 
of a mile above Ilorse Hammock, west to the bay, and from the stone easterly 
to the mouth of Little Annamessex river. He and Mr. James Lawson, the two 
oldest men summoned in the case, agreed as to the line, and upoji their evidence I 



House Doc. 'No. 6. 53 

loas cleared. Mr. James Lawson was summoned for the state of Maryland, and 
my grandfather was summoned on my side. 

"iOth question by same. Was the evidence sustained by other witnesses in 
the cause? 

"Answer. It was (I think) by all who testified about the line. The old wit- 
nesses testified on that point." 

When asked as to the location of Filliby's Eock, the Little Rock, and the 
Great Rock, he said : 

"Answer. They all three lie east of the Sound channel; and Filliby's Rock 
is farthest north, the northern part of which is perhaps one-quarter of a mile 
south of the light-house near Jane's Island. The Little Rock is farther south, 
perhaps from one-half to three-quarters of a mile south of the light-house afore- 
said, it lying between Filliby's and the Great Rock. G#eat Rock lies southwest 
•of Little Rock; the western part goes down to the channel, but the great body 
of it lies towards the Annamessex shore. By 7-ock we mean a bed of oysters.''^ 

It will thus be seen that before this controversy arose, the court of Somerset 
county, Maryland, reversed the decision of the justice of the peace, acquitted 
John Tyler, and released his schooner when he vras dredging not less than three 
miles north of Cedar Straits, on the east, or Maryland side of Tangier Sound, 
and therefore not protected even by the Horse Hammock and Sassafras Ham- 
mock line across Smith's Island, solelt/ upon the ground that he was dredging in Vir- 
ginia waters, being south of the boundary line between Maryland and Virginia 
on Janes' Island, extending, as was proved, over Smith's Island. In short, he 
was protected expressly by a judicial recognition of the Calvert and Scarburg 
line, as, I insist, it was located by them. Afterwards Tyler sued Mr. Cullen for 
damages, for seizing and detaining the Fashion, and after verdict a judgment 
was rendered against him, which he paid. Mr. Cullen testified that his coun- 
sel, Judge Tingle, and Mr. Crisfield, the attorney for Tyler, both sj^oken of as 
able lawyers, agreed that he had to pay the judgment, but they thought he had 
a good casie to petition the legislature of Maryland for relief on, as he was an 
ofKcer who thought he was discharging his duty in making the seizure. This 
case led to the subsequent legislative action. 

It is hard to understand how Maryland, through her courts and her lawyers, 
could have given a more absolute recognition of Virginia's right, under the line 
of 1668, than the "Fashion" case presents. It is certain that there was no 
ground for believing that Cedar Straits was the Charter Watkins' Point, or such 
judgments never would have been rendered by the Maryland courts, with such 
lawyers defending. It was shown clearly before us that Maryland never had 
exercised exclusive jurisdiction over any portion of the waters of Tangiei' Sound 
soutk of the line of Calvert and Scarburg, at the Watkins' Point claimed by 
Virginia, and that she not only never exercised exclusive jurisdiction over any 
portion of the waters of the Pocomoke Bay, but that Virginia repeatedly as- 
serted her right of sovereignty over the whole of the Bay of Pocomoke; she 
established police and revenue regulations over it, and a citizen of Maryland 
was killed in an affray originating in the effort of Virgiriia officials to enforce a 
very rigorous construction of the Virginia laws over the right of oystering in 
the bay. Virginia paid five-eighths and Maryland three-eighths of all light* 
house and other expenses on it. Virginia alone could try foreigners for offen- 



54 House Doc. Xo. 6. 

ses committed on foreigners, and in many other forms asserted her superior 
right. I think it may be safely said that Maryland never asserted more than a 
common right with Virginia in Pocomoke bay, and never claimed exclusive 
jurisdiction over any part of its waters. 

Before sjieaking of the effect to be given to possession, I will close this long 
and somewhat disconnected review of the history of this controversy, and of 
.the reasons which controlled me in reaching the conclusions I have arrived at, 
by noticing as briefly as I can the effect which the last or closing line has on 
the question. 

Although it was argued, I think it can hardly be seriously contended, that 
the language used in describing the closing line of the charter to Lord Balti- 
more, which calls for the^" shortest line" or a straight line (which is always the 
shortest) from Cinquack or Smith's Point to WatMns'' Point, throws any light on 
the question as to the location of the true Watlins' Point on the Eastern Shore. 
Whether it was at " OnancocJc,'^ as Lord Baltimore first claimed, or at " Xaniicoke,^^ 
as Virginia asserted, or at the lower point of Watts' Island, as the Maryland 
commissioners lately believed, or at Cedar Straits, as Maryland now assumes, or 
at the westernmost angle of the promontory on the Calvert and Scarborough 
line of 1668, as Virginia insists it is, the closing line from the western side of ' 
the Chesapeake must be drawn straight to it, and can be drawn as well to one 
as the other, without throwing any light on which is the true beginning. The 
closing line must run to the beginning. The survey of the charter could not 
otherwise be closed. " Watkins'' Point" is nowhere assumed, either in the char- 
ter or in any controversy between the colonies or the states, to be the point or 
place nearest the western side of the bay at the mouth of the Potomac. It is 
not certain that Captain Smith knew where the mouth of the Potomac was 
when he named " Watkins Point." It is very certain that he did not so name 
it because it was the land nearest to the place he called '■^Cinquack'''' on the 
western side of the bay. Wherever he fixed Watkins' Point is the tru^charter- 
line of division, which both states have directed us to ascertain and report j 
and though there may be a dozen places or angles or points on the Eastern 
Shore nearer to Smith's Point or Cinquack than John Smith's Watkins' Point, 
we cannot close the Maryland charter boundary line by running the line to any 
of them. The fact that no one, either under the colonies or the states, in all 
the controversies relative to the true initial point of Lord Baltimore's charter, 
ever suggested that the call in the closing line for the "shortest line" to the 
beginning, threw any light as to where the beginning point was, or that it con- 
trolled the first line that the charter required to be run, or determined its 
locality, is highly persuasive evidence, if any is needed, to show that thei^ is 
no real merit in the argument on that point. 

I have up to this point avoided speaking or the adniilted fact that Maryland 
has always held possession of and exercised jurisdiction over all the land west 
of the Pocomoke river and south of tlie line of Calvert and Scarburg, which t 
have been contending is the true divisional line, because, if I have failed to 
show that I am right as to that line, there can be no question as to the right of 
Maryland to all the land west of Pocomoke river down to Cedar Straits. I 
shall assume, therefore, when speaking of the effect of possession, that I- am 



House Doc. No. 6. 55 

right as to the line of Calvert and Scarburg extending from the Chesapeake 
bay to the ocean, and that it is the true southern line of Lord Baltimore's 
charter on the Eastern Shore. That being so, what rights have been acquired 
by possession of the land south of the true line? The King, in the charter of 
1G32, after setting out the boundaries of the grant, add?, "so that all that tract 
of land divided by the line aforesaid drawn between the main ocean and 
Watkins' Point unto the promontory called Cape Charles and all its appurte- 
nances do remain entirely excepted to us, our heirs and successors forever." 
AVith that express restriction and reservation in the charter. Lord Baltimore 
could not, either by laying off the county of Somerset to Cedar Straits, or to 
Onancock, or to any point south of his charter line, have acquired title by 
l^ossession against the King. Certainly not without avowing his intention to 
hold it, even though it was outside of his charter. Virginia remained a Eoyal 
Province till she declared her independence in 1776. Her right and title was 
the right and title of the King up to that time. She could not, if she had 
tried, have deprived the King of his sovereign jurisdiction over all the territory 
he had ^^ entirely excepted" in the charter for Maryland to himself, his heirs and 
successors forever, and there is no evidence that she ever attempted to do so. 
Neither the possession of Lord. Baltimore nor the neglect or ignorance of the 
agents of the King in Virginia in allowing him to hold south of his charter 
line could destroy or weaken the title of the King to the property he had so 
expressly reserved. It is certain that Virginia never granted anything to Lord 
Baltimore south of his charter line. Her complaint to the King in 1682, which 
I have already set forth, proves that she was more aggrieved at what Calvert 
and Scarburg had given him than disposed to grant him anj' more ; and it is 
equalljr certain that he received no additional grant from the King, and never 
asserted anj^ right, by possession or otherwise, south of the line of his charter. 
The letters sent by the King's order to Lord Baltimore, relative to his bounda- 
ries, and to the settlement of his controversy with William Penn, assume that 
the line fixed by the Commissioners in 1668 as the southern boundary of his 
charter was conclusive, as Lord Baltimore's own letters, answers to the Com- 
missioners in, London, and his conveyances and orders assumed that it was. 
Therefore the presumption of a grant which, after possession for a great length 
of time, arises as between private individuals, does not operate in the matter 
we are considering. That was beyond question the Eiiglish law prior to the 
Revolution. 

Looking over the whole ground, it is not difficult to understand how Mary- 
land happened to retain the land west of the Pocomoke and south of the 
charter line. Greneral Michler, in his report in 1859, says " that the land lying 
south of tlie prolonged or broken line is principally marsh, the area of the firm 
land south of it and west of the Pocomoke not exceeding eight square miles." 
The whole quantity of land south of the line, on the west side of the river, is 
about twenty-three square miles, or less than 15,000 acres, and the firm land is 
only about 5,000 acres. The line from the Pocomoke river to the western angle 
of the point on the bay is fifteen miles long, so that there was less than 1,000 
acres of land of any sort, and only about 300 acres of firm land on an average 
to tlie mile along the whole line. It could hardly be supposed or expected, at 



56 House Doc. Xo. 6. 

a time when land was cheap and population sparse, that men who wanted to 
locate in Virginia would seek to obtain grants from her authorities and settle 
where they would be separated from the great body of Accomac county, de- 
prived of all the protection and advantage of Government, to live in isolated 
spots surrounded by swamj^s. It must not be forgotten that religious intole- 
rance prevailed at that time to an extent which we would now regard as absurd, 
if not impossible. The few scattered Virginians who could have been located, 
or .^' seated,'^ as it was then called, on the spots of firm ground, would have felt 
very much like convicts, surrounded by Quakers, Catholics, and other Non- 
conformists, whom thej' had i^erhajis aided in driving out of Virginia because 
of their heretical opinions. 

A very different condition existed as to the settlement of this strip of land 
under the Government of -Maryland. Lord Baltimore had, as early as 1661-'62, 
urged his officers to push his settlements as far and as rapidly southward on the 
eastern shore as possible, and while Virginia was pushing north on the eastern 
side of the Pocomoke so rapidly that before 1668 she had granted over 33,000 
aci'es, or more than fifty square miles, north of the line established by Calvert 
and Scarburg, Maryland was pushing South, on the "West side of that river, 
wnth all 2?ossible energy. Lord Baltimore had made a nuniber of grants, as the 
Patents laid before us showed, on the west side south of the Calvert and Scar- 
burg line from 1664 to 1667. He had laid off the county of Somerset in 1666 
so as to embrace all the land Avest of the river and north of Pocomoke Baj'. 
He had established "hundreds," and laid out roads, organized the militia, 
and had all the settlers looking to his officials for protection and assistance. 
When the Calvert and Scarburg line was establislied he had covenanted to pro- 
tect all the grants made by Virginia north of the line. No protection was 
given by Virginia to his grantees south of it. Of course all who could, clung 
to the Maryland Government for protection, all west of the Pokomoke did so, 
as there were no Virginia grants there to call for the line or for protection under 
the agreement. The Maryland courts were convenient; everything in short 
combined to make Virginia neglect and Maryland hold on to the slip of land 
south of the line and west of the Pocomoke, while every interest united to 
cause the lines east of it to be carefully maintained. Scarburg does not appear 
any more after 1668. It was not shown when he died. Lord Baltimore, in 
1671-72, in the recitals in the grants he made under the agreement of 1668, 
speaks of him as " the late Surveyor General of Virginia.^' Very few patents were 
issued by Lord Baltimore for any land south of the line west of the river for 
several years after 1668, only one or two for five yearSj and very few for seven 
or eight, until it became apparent that the settlers still clung to Maryland, and 
Virginia took no steps to interfere. Probably after Scarburg was gone hardly 
any one cared anytliing about tiiat detached fragment of land. He must have 
been well advanced in years when the line was run, as he was a representative 
of Accomac county in the Grand Assembly of Virginia thirty-eight years before 
he ran the line. Soon after 1668 Herrman's map appeared ; it purported to be 
a map of Virginia and Maryland, " published by authority of his majesty's royal 
license and particular privileges * * * for fourteen years from the year of 
our Lord 1673. It laid down the Calvert and Scarburg line straight from the 



House Doc. JN'o. 6. 57 

ocean to tlie Chesapeake, drew the double rows of trees along the line east of 
the Pocomoke, but made the line run through the bay of Pocomoke to the 
southern angle at Cedar Straits showing no land south of the straight line of 
1668 west of the Pocomoke river. Doubtless it was extensively circulated in 
both colonies, and was well calculated to deceive, and no doubt did deceive the 
people of Virginia and the authorities by making them believe that Virginia 
had no land to grant on the eastern shore west of the Pocomoke. Mr. Jeffer- 
son's map, as well as that of Fry & Jefferson, follow Herrman's. They evidently 
copied theirs from his. The line of Calvert and Scarburg is marked and the 
date of it given on each of them ; that of Mr. Jefferson extending it as Herr- 
man had done, sti'aight to Smith's Point, but throwing it down so as to cross 
Pocomoke Bay six or eight miles lower than where we know it actually is, and 
leaving no land in their jirotraction of the Calvert and Scarborough line in 
Virginia west of the Pocomoke. All of them are now known to be palpably 
wrong, but they deceived Virginia as to her rights, and show how it was that 
Maryland retained possession of the land which lay south of her charter line 
on the west side of the Pocomoke river. It was a rule in the English colonial 
office to require governors and proprietors of colonies and grants in America to 
report, in answer to interrogatories, such facts relative to the condition of their 
provinces, their boundaries, trade, &c., as the "Lord of the Committee of Trade 
and Plantations" required. 

The reply and complaint of Virginia in 1G82, claiming that the Calvert and 
Scarborough line had been unfair to her by not fixing " Waikins' Point" at Nan- 
ticoke, fifteen miles north of the line they agreed on, was in answer to inter- 
rogatories of that sort. "We have before^ us, from pages 217 to 222 of the Book 
of Eeports and Statements, &c., of 1872, a series of similar questions pro- 
pounded to Lord Baltimore on the 10th of April, 1678. Tlie tenth question is, 
*' What are the boundaries, longitude, latitude, and contents of land within 
the province? — what number of acres patented, settled or unsettled, and how. 
much of manureable land ?" Lord Baltimore's answer to this question as to 
his boundaries has been given in another connection, but it is better perhaps 
to repeat it here. He says : '' To the 10th I answer, that the boundarys, longi- 
tude, and latitude of this Province are well described and set forth in a late 
map or chart of this Province lately made out and prepared by one Augustine 
Herrman, an inhabitant of the said Province, and printed and publicly sold in 
London by his Majesty's license, to which I humbly refer for greater certainty, 
and not to give their Lordships the trouble of a large, tedious description here." 

Nothing api^ears to indicate that the commissioners demanded any more 
sjoecific description of the boundaries. Herrman had not only drawn the 
divisional line straight from the ocean to the bay, but he had with great min- 
uteness described his line as the line laid down by Calvert and Scarborough. 
Lord Baltimore ad'opted it, and the commissioners accepted it. Michler and 
others have established and located it. Lord Baltimore never claimed nor did 
Virginia or the king ever concede that he was entitled to any land or water 
south of it. His holding, therefore, south of the line, west of the Pocomoke 
river, was simply by mistake on both sides, and not by either claim of right on 
one side or hy concession or abandonment of right on the other. 



58 House Doc. Xo. 6.* 

I am satisfied that the English authorities before the Revolution all agree 
that such liolding vinder a charter containing such absolute exceptions in favor 
of the king to all the land and its appurtenances south of the charter line did 
not vest the title in Lord Baltimore, nor abridge in any way the king's absolute 
right to take it away at any time. This mistake on both sides was brought 
about in great part by erroneous maps, which were circulated extensively and 
relied on without examination as to their correctness, as all of them showed 
that Virginia had no land west of the Pocomoke River by the map-makers' 
protraction of the line of Calvert and Scarborough. ^ 

If I am right in the assumption that Maryland acquired no right either from 
the king or Virginia by possession under the circumstances I have indicated,, 
she had no title to it when the colonies threw off their allegiance to the king. 
The next question is, what title has she acquired since. Virginia, by the 21st 
section of her constitution of 1776, already referred to, provided that "The 
territories contained within the charters erecting the colonies of Maryland, 
Pennsylvania, North and South Carolina are hereby ceded, released, and for- 
ever confirmed to the people of those colonies respectively." 

This provision certainly contained no grant beyond what the charter of Mciry- 
land gave her, and parted with nothing of hers which Maryland had in' posses- 
sion outside of her charter line. 

The compact between the then sovereign and independent states of Maryland 
and Virginia, entered into in 1785, while it rejieatedly recognizes the Pocomoke 
River as being within the limits of Virginia, as it undoubtedly is, from the point 
where the Calvert and Scarburg line crosses it to its mouth, if I am correct in 
my construction of their action ; and as it undoubtedly is not for any distance 
whatever, if the crooked line from Cedar Straits is accepted as the true one, in 
the tenth article makes the following provisions : 

'' Tenth. All piracies, crimes, or offenses committed on that part of Chesa- 
peake Bay which lies within the limits of Virginia, or that part of the said bay 
where the line of division from the south of Potowmack River (now called 
Smith's Point) to Watkins' Point, near the mouth of Pocomoke River, may be 
doubtful ; and on the part of Pvcomoke river, icithin the limits of Virgwia, ov where 
the line of division between the two states upon the said river is doubtful, by 
any persons not citizens of the commonwealth of A'^irginia against the citizens 
of Maryland, shall be tried in the court of the state of Maryland which hath 
legal cognizance of such oftense. And all piracies, crimes, and offenses com- 
mitted on the before-mentioned parts of Ciiesapeake Bay and Pocomoke river,, 
by any persons not citizens of Maryland, against any citizen of Virginif\, shall 
be tried in the court of the commonwealtJi of Virginia which hath legal cog- 
nizance of such offense. All piracies, crimes, and offenses committed on the 
said parts of Ciiesapeake Bay and Pocomoke River, by persons not citizens of 
either state, against persons not citizens of either state, shall be tried in the 
court of the commonwealth of Virginia having legal cognizance of such offenses."' 

If Maryland's holding down to Cedar Straits had been adverse and avcjwed, 
and she had maintained her undoubted right to that point as the Watkins' 
Point of her charter, it is hard to understand why she would have made or 
agreed to a provision which substantially admitted that the Wat/dns' Point of 
the charter was doubtful. There could have been no doubt about it if Mary- 
land had maintained and Virginia had admitted that "Cedar Strait'" was the 



House Doc. JNTo. 6. 59 

clmrtev jmni. Time does riot run against the commonwealth any more than it 
does against the king. When the holding was either doubtful or subject to 
future adj ustment it is clearly excluded from all principles under which title 
by possession can be acquired from a sovereign: The language of that section 
clearly concedes a doubt by both states, both on the Chesapeake Bay and Po- 
comoke River, which neither desired to secure any advantage from over the 
other, by reason of accidental possession, as all their future legislation on the 
subject shows. That uncertainty and doubt became more serious as population 
grew more dense and the trade in oysters became the subject of state regula- 
tion and taxation. 

The case of the *' Fashion " is a prominent example, which need not be re- 
peated. It illustrates this branch of the case very clearly. 

I will not prolong this already too prolix statement by noticing any of the 
old acts of the states after the adoption of the constitution. Those of recent 
date make the question clear, both as to the doubt regarding the true line and 
the friendly character of the holding by either of whatever might be found to 
belong to the other. On the 29th of March, 1852, the legislature of Maryland 
passed an act which recites that "the true location of that part of the line 
separating the state of Virginia from Maryland, intervening between Smithes 
Point at the mouth of the Potomac River and the Atlantic Ocean, has from lapse of time 
become uncertain, thereby involving innocent parties in difficulties to them irrem- 
ediable, therefore Virginia is invited to appoint joint commissioners to entrace 
that portion of the line and to mark the same by the erection of suitable mon- 
uments at proper points." For some unexplained reason Virginia did not ac- 
cept this invitation until 1858. Under these acts Messrs. Lee and McDonald 
were appointed by their respective states to entrace and mark the doubtful (kivi- 
sional line on the eastern shoi'e. Lieutenant Michler's survey and report is 
part of their work. Their report and Michler's were referred by the legis- 
lature of Maryland to a select committee, which made a report, saying that 
the committee ^did not find the uncertainties described in chapter 60 to be 
existing in the boundary betw een Smith's Point at the mouth of Potomac 
River and the Atlantic ;" and they say " it appears that the commissioners of 
1668 established and marked the whole boundary across the peninsula or Cher- 
sonese by a line between Pocomoke River and the marsh of the seaside, begin- 
ning therefor on the Pocomoke River, east by compass from the extremest 
point of the locsterninost angle of said Watkins' Point, as by thein defined ;" 
'^ and that consequent upon this action of tlie commissioners, the divisional 
line aci'oss the bay was and is now known and recognized to be a line from 
Smith's Point, at the mouth of the Potomac, to this same westernmost angle of 
Watkins' Point, and these are the true limits of this state to the south and 
west." And they reported a bill accordingly; but it was amended in its pas- 
sage by strikin g out "westernmost" and inserting "southernmost," as descrip- 
tive of the line from Smith's Point across the Bay. 

The committee reported the true state of facts, as Michler's report shows, but 
the legislature changed it. No reason was shown for the change, so far as I 
have been able to ascertain. The committee's report was unanimous, and its 
conclusions after examination are entitled to full consideration, notwithstand- 



60 House Doc. No. 6. 

ing the action of the House, which cannot usually examine all the facts as well 
as a committee. However that may be, the action taken by the state since the 
comijact of 1785, was entered into, confirms the admission therein made and 
assumed, that the divisional line across the Eastern Shore was doubtful, neither 
asserting a positive claim to any fixed initial point, nor claiming, as against the 
other, anything either might happen to hold by mistake as to their rights. 

The difference between the Maryland legislature and its committee, illustrates 
how honestly these differences of opinion might exist. Their action proves 
further that both agreed that the true line was the line of Calvert and Scarbo- 
rough. They did not by their legislation undertake to establish a new line ; 
they only proposed to retrace and mark an old one. As there never had been 
any other run or attempted to be run except that established in 1668 by Calvert 
and Scarborough, of course that was what they both agreed should be the boun- 
dary between them when ascertained, regardless of any encroachments by one 
or the other while ignorant of their rights. 

The acts of the states appointing this commission, are framed in the same 
spirit, and guard the rights of their citizens against any injui-y which might 
otherwise follow by reason of the mistakes by possession growing out of the un- 
certainty as to the true divisional line. The proviso referred to is as follows: 

" Provided, hovjever, That neither of the said states, nor the citizens thereof 
shall, by the decision of the said arbitrators, be deprived of any of the rights 
and i^rivileges enumerated and set forth in the compact between them, entered 
into in the year seventeen hundred and eighty-five, but that the same shall re- 
main to and be enjoyed by said states and the citizens thereof forever; and pro- 
vided further, that the landholders on either side of the line of boundary be- 
tween the said states, as the same may be ascertained and determined by the 
said award, shall in no manner be disturbed thereby in their title to and posses- 
sion of their lands as they may be at the date of said award, but shall in any 
case hold and possess the same as if their said title and 2iossession had been de- 
rived tinder the laws of the state in which by the fixing of the said line by the 
terms of the said award, they may be ascertained to be." 

It would unquestionably be better that the small strip of countiy west of the 
Pocomoke river, and south of the Calvert and Scarborough line, should be trans- 
ferred to Maryland. But I am unable to see, from the view I take of the action 
of the commissioners in 1668, and the subsequent action of the two colonies 
and states, how T can find the facts to be otherwise than as set forth in the fore- 
going statement. 

In order to illustrate more clearly where I think the true line runs than I can 
do by description, I have procured two copies of the map of Thomas I. Lee, the 
Maryland commissioner of 1860, and have protracted his line of Calvert and 
Scarburg froiji the Pocomoke river to Watkins' Point on the Chesapeake, thence 
over Smith's Island, and from the western side of that Island. I have drawn a 
straight line to Smith's Point; I have also marked in red ink, with substantial 
accuracy, the line agreed on by the other arbitrators, so that a map may be de- 
livered to each state as part of my view of the case. I do not jiretend that the 
charter line runs from Watkins' Point west over Smith's Island; and it is well 
known that Smith's Point, at the mouth of the Potomac, is not the charter 
point from which its closing line starts to cross the bay. That line was a straight 



House Doc. No. 6. 61 

one from "Cinquack," which was somewhere about six miles south of Smith's 
Point to Watkins' Point, on the Eastern Shore. "Cinquack" seems to have 
been abandoned long ago, certainly as early as 1785, when the compact was en- 
tered into, and the east and west line was by the- action of Lord Baltimore and 
the governor of Virginia, protracted from the "Watkins' Point" of Calvert and 
Scarburg as early as 1667 and 1682, as an equitable division of an outlying and 
for a time neglected island. 

JAMES B. BECK, of Keniuchj. 



Note. — The copy transmitted to the House of Delegates of Virginia, and by 
it furnished to its printer, was printed, and he has followed the spelling, punc- 
tuation, &c., verbatim. 



